George v Shire of Irwin - [2024] WASC 418

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GEORGE & ANOR -v- SHIRE OF IRWIN & ANOR [2024] WASC 418
CORAM:   SEAWARD J
HEARD:   6 FEBRUARY 2024
DELIVERED          :   14 NOVEMBER 2024
FILE NO/S:   CIV 1798 of 2023
BETWEEN:   KATHERINE MINNA GEORGE
First Applicant
CHAZ RYAN CRAGGS
Second Applicant
AND
SHIRE OF IRWIN
Respondent
ARTISANAL ALCHEMY WA PTY LTD
Other Party

Catchwords:

Judicial review - Application for development approval - Whether there was a jurisdictional error when making the decision - Whether there was a failure to comply with an essential preliminary to the exercise of power - Whether there was a misconstruction of the requirements of the decision-making power - Whether there was a failure to have regard to a relevant consideration - Whether the decision was unreasonable - Whether there was a mischaracterisation of the proposed land uses - Where it is appropriate to exercise the discretion to issue a writ of certiorari

Legislation:

Planning and Development Act 2005 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)

Result:

Application granted
Writ of certiorari issued

Category: B

Representation:

Counsel:

First Applicant	:	P G McGowan
Second Applicant	:	P G McGowan
Respondent	:	No appearance
Other Party	:	No appearance

Solicitors:

First Applicant	:	Williams + Hughes
Second Applicant	:	Williams + Hughes
Respondent	:	McLeods Lawyers
Other Party	:	Jackson McDonald

Cases referred to in decision:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Australian Unity Property Limited v City of Busselton [2018] WASCA 38
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Forrest & Forrest Pty Ltd v O'Sullivan [2020] WASC 468
General Nominees Pty Ltd (Atf Family Trust Four) v The Metro Inner-North Joint Development Assessment Panel [2022] WASC 114
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2023) 249 CLR 332
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656
S & L Lenz Proprietary Limited v The Shire of Serpentine Jarrahdale [2017] WASC 191
Sanders v City of South Perth [2019] WASC 226
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

SEAWARD J:

Introduction

On 27 June 2023 the respondent, the Shire of Irwin, approved a development application for the development of a distillery, brewery and restaurant with associated parking and landscaping on Lot 201 (No 30648) Brand Highway in Dongara (the Site). The Site is zoned 'Rural Smallholdings' under the relevant local planning scheme, being the Shire of Irwin Local Planning Scheme No. 5 (LPS 5).
The other party is the registered proprietor of the Site.
The applicants, Ms George and Mr Craggs, are the owners of a property situated adjacent to the Site. The two properties share a common boundary.
The applicants commenced an application for judicial review of the Shire's decision and seek a writ of certiorari and filed affidavit evidence in support. Both the Shire and the other party each filed appearances and attended a directions hearing at which programming orders were made, including for the filing of affidavit evidence and submissions by the parties. After the applicants filed their submissions, both the Shire and the other party filed notices stating that they did not intend to take any part in the proceedings and would accept any order made by the court, save as to costs. Neither took any further part in the proceedings.
For the reasons which I follow, I am of the view that the Shire made a jurisdictional error when making the decision and a writ of certiorari should issue quashing the decision of the Shire made on 27 June 2023 to grant the development application for the site.

Factual background to the planning application

The application for development approval

On 19 December 2022, the Shire received an application for development approval for the Site (the application).[1] The intended use described in the application was for a purpose-built distillery and brewery production space.[2] As described in the application, the proposed development comprised a distillery and brew house and a hospitality and cellar door.[3] The proposal included the following elements:[4]
[1] Affidavit of Chaz Ryan Craggs sworn on 18 July 2023 (Craggs affidavit) CRC-5, p 194.
[2] Craggs affidavit, CRC-1, p 195.
[3] Craggs affidavit, CRC-1, p 195.
[4] Craggs affidavit, CRC-6, p 182 - 183.
(a)two separate shed type structures each approximately 490m² in area and 8.2m high, predominantly constructed of metal, trimdeck wall cladding. The western shed is to be utilised for the brewery/distillery operations and the eastern shed for the restaurant and retail components;
(b)the area between the two sheds is proposed as a 550m² garden/alfresco area (partially uncovered) containing toilets, kitchen and a small stage;
(c)an 800m² grassed area including playground equipment;
(d)sealed access from a new crossover onto Bonniefield Road East approximately 30m from the railway line with a single, entry signage wall (6m long and 1.8m high);
(e)74 vehicle parking bays consisting of nine staff bays, 60 visitor bays and five caravan/bus parking bays;
(f)associated hard stand service area for deliveries, water tanks and waste management;
(g)proposed operating hours of 24 hours a day for the brewery, with the restaurant operating generally from 11 am - 5 pm seven days a week (with additional hours of 10 am - 10 pm for Sunday live music and at times of events);
(h)a proposed maximum production capacity of 201kl (equivalent to 192,000 bottles of spirits and 30,000 litres of beer); and
(i)a proposed maximum capacity of the facility of 200 patrons and 15 staff.

The applicants' objections

On 24 January 2023, the applicants received a letter from the Shire giving notice that it had received the application and inviting a response.[5] Relevantly for the purposes of this application, the letter from the Shire provided as follows:
The Shire of Irwin has received a Development Application for the above proposal and as a surrounding landowner the Shire is notifying you for the opportunity to comment on the proposal.
The application is for the construction of a distillery and brewery for the production and sale of alcohol and an associated restaurant for the onsite consumption of food and drinks.
The application is being referred to you as the land use is considered a 'use not listed' under Local Planning Scheme No. 5 and therefore determination of the application is at the discretion of the Shire of Irwin Council.
[5] Craggs affidavit [5], CRC-1.
On 16 February 2023, the applicants' solicitors wrote a letter to the Shire objecting to the application and submitting that the application should be refused.[6] In summary, the applicants stated that the Shire could not approve the application as it involved uses which were inconsistent with LPS 5, in particular:
(a)the site context, being located within a rural living and broadacre farming area;
(b)insufficient supporting information provided as part of the proposed development application, in particular failure to include a traffic impact statement/assessment, an acoustic report, an effluent treatment and disposal plan and potable water supply plan;
(c)the proposed development was inconsistent with the requirements under cl 4.4.2 of LPS 5 as the development was inconsistent the objectives of the Rural Smallholdings zone; and
(d)the proposed development was inconsistent with cl 5.30 of LPS 5 and the prescribed development requirements, including the absence of a structure plan, the failure to demonstrate access to an adequate water supply and the failure to satisfy the requirement that there would be no increase in the export of nutrients to watercourses or groundwater.
[6] Craggs affidavit [8], CRC-2.
On 30 May 2023, the Shire provided the applicants with further material that had been provided by the other party in relation to the development application. This included a letter from Planning Solutions, a company engaged by the other party to assist with the application; a transport impact statement provided by an engineering consultancy company; an acoustic report; a hydraulic services schematic design report; a complaints management policy; and an emissions management plan.[7] The Shire also invited the applicants to prepare any further response by 21 June 2023.[8]
[7] Craggs affidavit [9] - [10], CRC-3.
[8] Craggs affidavit, CRC-3, p 29.
On 21 June 2023, the applicants' solicitors sent a further letter to the Shire responding to the additional information and reiterating the applicants' objection to the application.[9]

The decision

[9] Craggs affidavit [11], CRC-4.

The application was considered at the ordinary council meeting held on 27 June 2023, where the proposal was approved by the council of the Shire, subject to a number of conditions (which are not relevant to the application for judicial review).
The minutes from the meeting do not contain any reasons for the decision of the council. However, the minutes do contain the agenda papers for the meeting, which include a report from the Shire officers to the council in relation to the application, and the officer recommendation;[10] all materials filed in support of the application (including the report from Planning Solutions, the traffic report, the wastewater management plan, and the acoustic report); a schedule of objections and the consultation responses from the government agencies. The public submissions were contained in a confidential attachment.
[10] Craggs affidavit, CRC-6.
The officer recommendation was:
That Council, by Simple Majority
1.Determines that the use 'Brewery' may be consistent with the objectives of the Rural Smallholdings zone.
2.Approves the application for development approval for a 'Brewery' and 'Restaurant' on Lot 201 (No. 30648) Brand Highway, Dongara subject to the following conditions…
The minutes then record that the officer recommendation was approved, subject to an amendment to remove one condition. Leaving aside the conditions, the two relevant paragraphs of the council resolution are identical to the above officer recommendation.
The content of the officer report is outlined later in these reasons in the context of the relevant ground of review.

Grounds of review

The grounds of review as contained in the amended application for judicial review[11] are as follows:
1.Having identified that the proposed uses (distillery and brewery) were uses not listed under LPS 5, the Respondent erred in law by determining that such uses may be consistent with and within the objectives of the Rural Small Holdings zone, when the facts were and the Respondent should, as a result, have determined that the proposal was not consistent with the objectives of the applicable zone by reason of the scale of the contemplated development.
2.The proposed restaurant use, either incidental to the main use distillery and brewery or in its own right, was an A use (not permitted unless the local government exercises its discretion after advertising the application).
3.In approving the restaurant use either as incidental to the main use, distillery and brewery, or in its own right, the Respondent erred in law by determining that such use may be consistent with and within the objectives of the Rural Small Holdings zone, when the facts were and the Respondent should, as a result, have determined that the proposal was not consistent within the objectives of the applicable zone by reason of the scale of the contemplated development.
4.The Respondent impermissibly granted approval for the proposed uses distillery and brewery when on a proper construction of cl. 4.4.2(b) of LPS 5 the Respondent, as decision-maker, was required first to determine that the use may be consistent with the objectives of the Rural Small Holdings Zone and thereafter follow the advertising procedures of cl. 9.4 in considering an application for planning approval when as at 27 June 2023 the advertising procedures had preceded the determination by the Respondent that the uses may be consistent with the objectives of the Rural Small Holdings Zone.
5.Having identified that the proposed uses (distillery and brewery) were uses not listed under LPS 5, the Respondent erred in law by failing to determine that on the material before it, the uses were properly characterised as either industry-general or industry-light both of which uses were X (not permitted) uses in the Rural Small Holdings Zone and as a result impermissibly granted approval.
[11] Leave to amend being granted by orders dated 18 October 2023.
Grounds 2 and 3 should be read together.
The effect of these grounds of review, as clarified in the applicants' written and oral submissions, is to allege that the Shire made a jurisdictional error in making the decision. The applicants submit that the Shire made a jurisdictional error in the following ways:
(1)breaching a condition of the decision-making power (ground 4);
(2)misconstruing the requirements of LPS 5 and/or failing to have regard to a mandatory relevant consideration (grounds 1 - 3);
(3)making an error of law by failing to properly characterise the proposed land use and as a result impermissibly granting approval (ground 5); and
(4)making a decision that was legally unreasonable (grounds 1 and 5).

Legal principles - judicial review

Jurisdictional error refers to a breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute.[12] This court, in exercising its supervisory jurisdiction to review a decision for jurisdictional error, is concerned with the limits of the powers and functions given to the decision maker and not the merits of the decision.
[12] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [2].
The applicants bear the burden of proving jurisdictional error, including the burden of proving, on the balance of probabilities, all of the facts on which the allegation of jurisdictional error is founded.[13]
[13] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 [24].
The categories of jurisdictional error are not closed.[14] However, relevantly for present purposes, some common examples of errors which may amount to jurisdictional error on the part of an administrative decision maker (not being an inferior court) include: a misapprehension or disregard of the nature or limits of the decision‑maker's functions or powers; failing to take into account a relevant consideration; misconstruing the relevant legislation so as to misconceive the nature of the function being performed or the extent of the decision-maker's powers; and making a decision that is legally unreasonable.[15]
[14] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [3] and the authorities cited therein.
[15] M Aronson, 'Jurisdictional Error without the Tears' in M Groves and H P Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines, Cambridge University Press, Victoria, (2007) 330, 335 - 336, as cited in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71]. See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [3].
In addition, an error will only be jurisdictional if the error was also material to the decision that was made. Some errors (eg bias or unreasonableness in the final result) will, of their nature, always be jurisdictional errors. However, for most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred.[16] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error, but the threshold is not demanding or onerous.[17]
[16] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [6] - [7]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [32] - [33], [46], [63].
[17] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [14] - [15]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at 107 ‑ 108 [46] - [47], 134 [127].
Finally, it is important to observe that a breach of a condition regulating the exercise of a statutory power does not always mean that the exercise of power is invalid and of no effect.[18] Rather, it is necessary to construe the statute in question so as to determine whether there can be discerned a legislative purpose to invalidate any decision that fails to comply with the condition.[19] In determining the question of purpose, regard must be had to the usual principles of statutory construction, which involves the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose.[20] As outlined by the High Court in Project Blue Sky v Australian Broadcasting Authority:[21]
The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
(citations omitted)
[18] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388 - 389 [91]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [4].
[19] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388 ‑ 389 [91].
[20] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
[21] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388 ‑ 389 [91].

Whilst there is no decisive rule or ranking of any relevant factors, in Forrest & Forrest Pty Ltd v O'Sullivan, Tottle J helpfully outlined the following propositions which emerge from the various authorities:[22]
[22] Forrest & Forrest Pty Ltd v O'Sullivan [2020] WASC 468 [39].
Even though there is no decisive rule, nor a ranking of relevant factors and, of course, every case turns on the statutory regime and the particular language used, the following propositions, which overlap in their expression and application, may be derived from the authorities:
(a) If the condition regulates the exercise of functions already conferred on the decision-maker, that is, if it concerns a fact to be adjudicated upon in the course of the inquiry, rather than imposing essential preliminaries to the exercise of the functions it is less likely to be a jurisdictional fact.
(b)If the condition has a 'rule like quality' which can be easily identified and applied it is more likely to be jurisdictional. Conversely, if the condition involves a consideration of matters of policy in respect of which there is room for widely differing opinions it is less likely to be jurisdictional.
(c)If determining whether there has been compliance with a condition involves issues of fact and degree it will often, but not always, be the case that these are matters for the decision maker to determine within jurisdiction. In each case the overall statutory context is determinative as to whether or not the legislature intended the existence of the fact to both objectively exist and be essential notwithstanding the element of fact and degree and even judgment, that was required in the process of determining whether or not the relevant fact existed.
(d)If a condition is expressed in 'indeterminate language' that might convey that obligations imposed are goals to be achieved as opposed to rules to be obeyed it is less likely to be jurisdictional.
(e)Similarly, that a condition calls for the exercise of broad judgment on a matter of potentially significant disputation suggests that it is less likely that the legislature intended it to be an objective fact because of the capacity for reasonable minds to differ.
(f)A condition containing a factual reference involving the mental state of the primary decision-maker - 'opinion', 'belief', 'satisfaction' - is less likely to condition the exercise of jurisdiction, other than that the existence of the mental state is a particular kind of jurisdictional fact.
(g)If a factual matter plays a critical role in the decision-making process it is more likely to be construed as jurisdictional.
(h)If the invalidity would result in public inconvenience it is unlikely that a condition will be regarded as jurisdictional.
(citations omitted)
I respectfully agree with and adopt this summary.

Legal principles - the statutory planning framework

Planning and Development Act and Regulations

The application fell to be decided in the context of the legislative framework governed by the Planning and Development Act 2005 (WA) (PD Act), the regulations made under it, the relevant local planning scheme and any relevant planning policies.
Part 3 of the PD Act provides for the preparation of State planning policies, which are 'to be directed primarily towards broad general planning and facilitating the coordination of planning throughout the State by local governments'.[23] A State planning policy may make provision for any matter which may be the subject of a local planning scheme.[24]
[23] PD Act s 26(2).
[24] PD Act s 26(3).
Part 5 of the PD Act provides for the preparation of local planning schemes by local governments, which may be made with respect to any land with the general objects of 'making suitable provision for the improvement, development and use of land in the local planning scheme area' and 'making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7' of the PD Act.[25]
[25] PD Act s 69(1).
Section 256(1) of the PD Act provides for the making of regulations prescribing provisions that deal with carrying out the general objects of local planning schemes and any of the matters set out in sch 7. These regulations must designate each provision prescribed under s 256(1) of the PD Act as being either:[26]
(a)a model provision, being a provision to which section 257A of the PD Act applies; or
(b)a deemed provision, being a provision to which section 257B of the PD Act applies.
[26] PD Act s 256(5).
Unless the regulations otherwise provide, provisions prescribed under s 256(1) of the PD Act apply to all local planning schemes.[27]
[27] PD Act s 256(4).
Section 257A of the PD Act is concerned with model provisions and provides that a local planning scheme prepared or adopted by a local government must include any applicable model provisions that are prescribed by regulations in force at the time the scheme is approved by the Minister under s 87 of the PD Act (unless the Minister approves an exclusion from, or variation in, a model provision).
Section 257B of the PD Act is concerned with deemed provisions and provides that deemed provisions have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the local planning scheme comes into force.[28] If a deemed provision is inconsistent with another provision of the local planning scheme, the deemed provision prevails to the extent of the inconsistency.[29]
[28] PD Act s 257B(2).
[29] PD Act s 257B(3).
The relevant regulations made under s 256 of the PD Act are the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (PD Regulations). The PD Regulations designate particular provisions as being model provisions (found in sch 1 to the PD Regulations) or deemed provisions (found in sch 2 to the PD Regulations).
A local planning scheme may also supplement provisions prescribed under s 256 of the PD Act and deal with any special circumstances or contingencies for which adequate provisions are not prescribed under s 256 of the PD Act.[30]

LPS 5

[30] PD Act s 73(2A).

The relevant local planning scheme is LPS 5. A copy of the scheme text and relevant map extracts were included in the affidavit evidence before the court.[31] LPS 5 was originally gazetted on 7 May 2008, and has been amended on several occasions since that gazettal. The relevant parts of LPS 5 for the purposes of this application for judicial review are summarised below.
[31] Craggs affidavit, CRC-7.
Part 4 of LPS 5 classifies land falling within the scope of the scheme into the various zones shown on the scheme map.[32] The Site is classified as being in the Rural Smallholdings zone.
[32] LPS 5, cl 4.1.
Clause 4.2.9 of LPS 5 provides that the objectives of the Rural Smallholdings zone are:
a) To provide for the use of land for minor rural pursuits, hobby farms, conservation lots and alternative residential lifestyle purposes where parttime income from cottage industries, home occupation and the use of land for agriculture may be derived.
b) To preserve and enhance landscape quality, environmental values and conservation attributes.
The term 'rural pursuits' is defined in LPS 5 as:[33]
Rural pursuit: means any premises used for:-
a) the rearing or agistment of animals;
b) the stabling, agistment or training of horses;
c)the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens; or
d) the sale of produce grown solely on the lot;
but does not include agriculture - extensive or agriculture - intensive.
[33] LPS 5, Schedule 1.
The term 'agriculture - extensive' is defined to mean 'premises used for the raising of stock or crops but does not include agriculture - intensive or animal husbandry - intensive.'[34]
[34] LPS 5, Schedule 1.
The term 'agriculture - intensive' is defined as follows:[35]
Agriculture - intensive: means premises used for trade or commercial purposes, including outbuildings and earthworks, associated with the following -
a)the production of grapes, vegetables, flowers, exotic or native plants, or fruit or nuts;
b)the establishment and operation of plant or fruit nurseries; or
c)the development of land for irrigated fodder production or irrigated pasture (including turf farms).
[35] LPS 5, Schedule 1.
The term 'hobby farm' is defined in LPS 5 as:[36]
Hobby farm: means premises used for the keeping of farm animals or the growing of vegetables, fruit or flowers for non-commercial purposes or sale.
[36] LPS 5, Schedule 1.
The term 'industry - cottage' is defined as follows:[37]
Industry - cottage: means a trade or light industry producing arts and crafts goods which cannot be carried out under the provisions relating to a home occupation and which -
a)does not cause injury to or adversely affect the amenity of the neighbourhood;
b)where operated in a residential zone, does not employ any person other than a member of the occupier's household;
c) is conducted in an outbuilding which is compatible within the principal uses to which land in the zone in which it is located may be put;
d) does not occupy an area in excess of 50m²;
e) does not display a sign exceeding 0.2m² in area.
[37] LPS 5, Schedule 1.
LPS 5 contains a zoning table which indicates, subject to the provisions of the scheme, the land uses permitted in the various zones.[38] The zoning table identifies various different specific uses, and then classifies those uses into the following categories for each zone:[39]
'P'means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme;
'D'means that the use is not permitted unless the local government has exercised its discretion by granting planning approval;
'A'means that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with Clause 9.4;
'X'means a use that is not permitted by the Scheme.
[38] LPS 5, cl 4.3.1.
[39] LPS 5, cl 4.3.2.
If a specific use is mentioned in the zoning table, it is deemed to be excluded from the general terms used to describe any other use.[40]
[40] LPS 5, cl 4.4.1.
Clause 4.4.2 deals with the situation where a specific land use is not mentioned in the zoning table as follows:
If a person proposed to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government may -
a) determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
b) determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of Clause 9.4 in considering an application for planning approval; or
c) determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
A 'restaurant' is a specific land use contained in the zoning table, and for the Rural Smallholdings zone it is listed as an 'A' use - meaning that it is not permitted unless the Shire has exercised its discretion by granting planning approval after giving special notice in accordance with cl 9.4. The land use 'restaurant' is defined in LPS 5 as:[41]
Restaurant: means premises where the predominant use is the sale and consumption of food and drinks on the premises and where seating is provided for patrons, and includes a restaurant licensed under the Liquor Control Act 1988.
[41] LPS 5, Schedule 1.
Neither a 'brewery' nor a 'distillery' is listed as a specific land use in the zoning table - meaning that the requirements of cl 4.4.2 are applicable. Neither term is defined in LPS 5.
Clause 8.1 of LPS 5 provides that all development on land zoned under the scheme requires the prior approval of the Shire. Clause 8.2 outlines various types of permitted development which does not require approval from the Shire. Clause 8.2 is not identical to cl 61 of the deemed provisions contained in sch 2 of the PD Regulations, which also concerns development for which approval is not required. However, the application is not a permitted development under either clause, and therefore required approval.
Part 9 of the LPS 5 is concerned with applications for planning approval and details the relevant application forms and the required accompanying material. Clause 9.4 of LPS 5 details the requirements for advertising applications. However, this clause is not consistent with cl 64 of the deemed provisions of the PD Regulations, which also addresses advertising. Accordingly, the Shire was required to follow the advertising requirements as set out in cl 64 of the deemed provisions of the PD Regulations, and not cl 9.4 of LPS 5. The Shire did advertise the application by reference to the requirements of cl 64 of the deemed provisions of the PD Regulations. The actual requirements of the advertising under cl 64 of the deemed provisions of the PD Regulations are not relevant to the grounds of review. Rather, the relevance of the advertising to the judicial review application is concerned with the timing of that advertising in the context of the requirements of cl 4.4.2 of LPS 5 (see ground 4).
Part 10 of LPS 5 concerns the procedure for dealing with applications and sets out the process for the local government to consider when determining an application for planning approval. In considering an application for planning approval, the local government must have 'due regard' to the matters referred to in cl 10.2. However, cl 10.2 is not identical to cl 67 of the deemed provisions of the PD Regulations, with the latter containing some additional matters. Accordingly, when considering the application, the Shire was required to have regard to the matters contained in cl 67 of the deemed provisions of the PD Regulations. This is what was done in this case.
Relevant to this application for judicial review are the following aspects of cl 67 of the deemed provisions of the PD Regulations:
(1)Development approval cannot be granted on an application for approval of —
…
(b)development that otherwise does not comply with a requirement of this Scheme, unless —
(i)this Scheme gives the local government discretion to waive or vary the requirement or to grant development approval despite non-compliance with the requirement; or
(ii)the development is permitted under a provision of this Scheme in relation to non-conforming uses.
(2)In considering an application for development approval (other than an application on which approval cannot be granted under subclause (1)), the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application —
(a) the aims and provisions of this Scheme (including any planning codes that are read, with or without modifications, into this Scheme) and any other local planning scheme operating within the Scheme area…
In determining any application for planning approval, the Shire may grant its approval, with or without conditions, or refuse to grant its approval.[42]
[42] LPS 5, cl 10.3 and cl 68(2) of the deemed provisions.
When construing the provisions of a local planning scheme, the ordinary principles of statutory interpretation apply. However, as outlined by the Court of Appeal in Australian Unity Property Limited v City of Busselton:[43]
In construing a planning scheme, it is also relevant to note that schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach. But the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.
(footnotes omitted)
[43] Australian Unity Property Limited v City of Busselton [2018] WASCA 38 [84].

Preliminary matters

Prior to considering the grounds of review, it is necessary to consider a number of preliminary matters.
First, the application seeks development approval for a development which includes a restaurant, a brewery and a distillery. These land uses are treated differently in LPS 5. A restaurant is an 'A' use and a brewery and a distillery are not listed in the zoning table. A question arises as to whether the application before the Shire was one combined application, or a series of separate applications (one for each land use), and whether the Shire made one decision or a separate decision for each land use.
I am of the view that there was only one development application before the Shire for its consideration. The documents before the Shire and the court demonstrate that the other party made a single application for development to the Shire, comprising all of the elements described in [6] of these reasons. The supporting documents lodged by the other party (including the traffic report and the acoustics report) all assess and consider the development as a single development with all these elements. The Shire also considered the application as one combined application and made one decision addressing all elements of the application.
Secondly, the minutes of the council meeting held on 27 June 2023 contain the decision of the council, but do not contain any reasons for that decision. The minutes do attach the relevant officer report to the council, which included the officer recommendations. The agenda papers for the meeting include the officer report and the various attachments.
As the decision of the council was to approve the development, there was no obligation on the council to provide reasons.[44] The absence of reasons does not prevent judicial review.[45]
[44] Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656; LPS 5, cl 10.4.2.
[45] Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, 360.
The applicants submit that in the absence of reasons, the officer report is the most contemporaneous document which identifies the matters which were before the council at the time it made the decision and therefore can be taken as an explanation of the decision-making process that was followed by the council of the Shire. I accept this submission.
No alternative evidence as to the material before the council or the decision-making process was filed by the Shire. The Shire is a party to the proceedings and was aware of the applicants' affidavit evidence and submissions prior to deciding not to file any affidavit evidence. Whilst the applicants bear the burden of proof, it is relevant that the Shire has not filed any additional documents evidencing the decision-making processes of the Shire over those filed by the applicants.
The officer report did not present a series of alternative options for the consideration of the council. The report summarised the proposed development as well as the steps taken to date in relation to the application, including the results of the public submissions and consultations with government agencies. The report then made two substantive and consistent recommendations, being that the use of a brewery may be consistent with the objectives of the Rural Smallholdings zone and that the council approve the application subject to conditions. The report did not present alternative options. The matters referred to in the officer report were directed towards those recommendations. The various recommended conditions are then listed. The council accepted these substantive recommendations. The only respect in which the council did not accept the officer recommendation was in relation to one of the recommended conditions, which it voted to remove (concerning the number of events which could occur).

In light of these matters, I am satisfied that the minutes and the officer report constitute a contemporaneous record and explanation of the decision-making process that was followed by the Shire; the decision that was made and the matters that were before the council at the time it made its decision. I am satisfied that to the extent the officer report (properly construed) reveals a legal error, the report may be used for the purpose of inferring that the Shire made such an error.[46]
[46] Sanders v City of South Perth [2019] WASC 226 [58]; S & L Lenz Proprietary Limited v The Shire of Serpentine Jarrahdale [2017] WASC 191 [22] and the authorities cited therein.
Thirdly, the two substantive paragraphs of the decision of the Shire refer to the land uses of a brewery and a restaurant. There is no reference to a distillery. Further, the officer report largely refers to the brewery and the restaurant, and only refers to the distillery on a limited number of occasions. A question arises as to whether the Shire in fact considered the land use of a distillery as part of its decision-making process, or only the land uses of a brewery and restaurant.
I am of the view that on a fair reading of the officer report and the decision, the reference in the report and the decision to a brewery was also intended to be a reference to the distillery. This is consistent with the officer report referring to the 'brewery/distillery' when providing a description of the application.[47] The question of whether it was appropriate to group the two land uses together and/or what that reveals about the decision-making process, is a separate matter. However, for the purposes of this application, to the extent there is a reference to the land use of a brewery in the report and the decision, I have construed that as being a reference to both the brewery and the distillery.

Ground 4 - failure to comply with an essential preliminary to the exercise of the Shire's power to determine a development application

Has the Shire failed to comply with the requirements of cl 4.4.2(b) of LPS 5?

[47] Craggs affidavit, CRC-6, p 376.

It is convenient to deal with ground 4 first.
In ground 4, the applicants submit that the Shire has breached a condition of the statutory decision-making power by failing to follow the requirements of cl 4.4.2(b) of the LPS 5. Clause 4.4.2 deals with the situation where a specific land use is not mentioned in the zoning table. As both a brewery and a distillery are not mentioned in the zoning table, the clause was relevant to that part of the Shire's consideration of the application.
Clause 4.4.2 required the Shire to first consider and determine whether the land uses of a brewery and a distillery could 'reasonably be determined as falling within the type, class or genus of activity of any other use category' of the zoning table.
If the Shire concluded that the land uses could reasonably be determined as falling within the type, class or genus of activity of any other use category, then cl 4.4.2 would not be applicable and the Shire would be required to consider the development in the context of that other land use classification and the requirements of the zoning table. That is, to identify whether that land use was a 'P', 'A', 'D' or 'X' use in the Rural Smallholdings zone, and deal with the application accordingly.
However, if the Shire concluded that the land uses could not reasonably be determined as falling within the type, class or genus of activity of any other use category, then the Shire was required to proceed in accordance with cl 4.4.2, and do one of the following:
(a)determine that the land use is consistent with the objectives of the particular zone of the land, and is therefore permitted;
(b) determine that the land use may be consistent with the objectives of the particular zone of the land, and thereafter follow the advertising procedures contained in cl 64 of the deemed provisions of the PD Regulations in considering an application for planning approval; or
(c)determine that the land use is not consistent with the objectives of the particular zone of the land and is therefore not permitted.
Ground 4 concerns the requirements of cl 4.4.2(b) of LPS 5, as opposed to the requirement that the local government determine whether the proposed land could 'reasonably be determined as falling within the type, class or genus of activity of any other use category' of the zoning table, which is the subject of ground 5.
The applicants submit that when the officer report and the decision of the Shire is considered, it reveals that the Shire has purported to proceed in accordance with cl 4.4.2(b) of LPS 5. In this respect, the Shire refers to paragraph 1 of the decision of the Shire, being that the Council, by simple majority:
1.Determines that the use 'Brewery' may be consistent with the objectives of the Rural Smallholdings zone. (emphasis added)
The applicants submit that the use of the words 'may be consistent with' are a clear reference to the Shire proceeding in accordance with cl 4.4.2(b) of LPS 5. However, the applicants submit that in doing so, the Shire has failed to comply with the requirements of cl 4.4.2(b) of LPS 5. The applicants submit that cl 4.4.2(b) requires that if the Shire determines that the land use may be consistent with the objectives of the particular zone of the land, then after making this decision, the Shire is required to follow the advertising procedures contained in cl 64 of the deemed provisions of the PD Regulations before making a determination on the application. The applicants submit that the evidence before the court establishes that the advertising occurred prior to the meeting on 27 June 2023, and at the meeting the Shire conflated the two requirements, and purported to determine that the land uses of a brewery and a distillery may be consistent with the objectives of the Rural Smallholdings zone and then go on to deal with and determine the application all in the one meeting. In this regard, the applicants rely on the second paragraph of the decision of the Shire, being that the council:
2.Approves the application for development approval for a 'Brewery' and 'Restaurant' on Lot 201 (No. 30648) Brand Highway, Dongara subject to the following conditions…
In proceeding in this manner, the applicants submit that the Shire failed to comply with the requirements of cl 4.4.2(b) of LPS 5, and in so doing breached a condition of the statutory conferral of decision-making power on the Shire.
I accept the applicants' submissions in this regard.
The evidence before the court is consistent with the Shire purporting to proceed in accordance with cl 4.4.2(b) of LPS 5. The decision of the council is that the land use of a brewery may be consistent with the objectives of the Rural Smallholdings zone. It would only be necessary to make a determination to this effect if the Shire was proceeding in accordance with cl 4.4.2(b) of LPS 5. If the Shire had decided to proceed in accordance with cl 4.4.2(a) then there was no need for such a decision to be made and the council should have instead concluded that the land use is consistent with the objectives of the Rural Smallholdings zone and is therefore permitted. The Shire did not make a decision to this effect.
Proceeding on the basis that the Shire was proceeding under cl 4.4.2(b) of LPS 5, that subclause requires the Shire to advertise the application after it has made a decision that the land use may be consistent with the objectives of the relevant zone. The requirement that the advertising take place after this decision has been made is clear from the text of cl 4.4.2(b) and the reference to 'thereafter'.
In the present case, the evidence before the court is that the council went on to approve the application on the same day as it made the decision that the land use of a brewery may be consistent with the objectives of the Rural Smallholdings zone.
Further, the evidence before the court is that the Shire advertised the application prior to making the decision on 27 June 2023. The officer report details the advertising undertaken by the Shire in relation to the development application as follows: [48]
[48] Craggs affidavit, CRC-6, p 382.
Consultation
The application was initially advertised in late January / early February 2023. Following the advertising a number of issues were raised and the applicant was invited to address those matters. Additional information was received by the Shire on 26 May 2023. This information was then provided to the Government/Service Agencies and also provided to those members of the public who initially raised concerns with the application.
Public Consultation
The application was advertised in accordance with cl. 64(1)(a) of the deemed provisions of the planning and Development (Local Planning Schemes) Regulations 2015.
The advertising involved the following:
·A copy of the application was made available for public inspection at the Shire office;
·The application was published on the Shire's website;
·A notice was published in a newspaper circulating the area; and
·A written notice was sent to adjoining landowners within approximately 1 km of the site.
In response to the advertising a total of 20 public submissions were received of which 9 objected, 2 were indifferent and 9 supported the application. A copy of the public submissions is contained in ID03‑06/23 Confidential Attachment 2.
The officer report then summarises the key planning issues raised in those submissions, before going on to detail the results of the consultation with the various government services and agencies.[49] What is clear from the officer report is that all the advertising occurred prior to the meeting on 27 June 2023.
[49] Craggs affidavit, CRC-6, p 382 - 385.
There is also no evidence of the Shire (either the council or a delegate) making a decision that the land use of a brewery may be consistent with the objectives of the Rural Smallholdings zone prior to the advertising and prior to the decision made on 27 June 2023. The officer report does not contain any reference to any such earlier decision. Given the officer report summarised the relevant material and provided the steps that had been undertaken to date in relation to the application, I consider the lack of any reference to any such earlier decision to be a basis upon which I can infer that no such earlier decision was made.
Further, the letter sent by the Shire officers to the applicants as part of the consultation process does not make any reference to a decision being made by the Shire that the land uses of a brewery and distillery may be consistent with the objectives of the Rural Smallholdings zone. The letter simply states that the application has been received, and as surrounding landowners, the applicants were being notified to afford them the opportunity to comment. The letter goes on to state that the application is being referred to the applicants as the land use is considered a 'use not listed' under LPS 5, and therefore determination of the application is at the discretion of the Shire. The contents of the letter are also consistent with no decision having been made by the Shire prior to the meeting on 27 June 2023 that the land uses of a brewery and a distillery may be consistent with the objectives of the Rural Smallholdings zone.
Finally, the Shire is a party to this application for judicial review and had filed an appearance at the time the affidavit evidence of the applicants was filed. The Shire made no attempt to file any additional evidence after receiving the evidence and submissions of the applicants. Again, whilst the applicants bear the burden of proof, it is relevant that the Shire has not filed any additional documents evidencing the decision-making processes of the Shire over those filed by the applicants.
In these circumstances, I am satisfied that the Shire has misconstrued the requirements of cl 4.4.2(b) of LPS 5, and in so doing has breached a condition of the statutory conferral of decision-making power to determine the application.

What is the effect of the Shire's failure to comply with the requirements of cl 4.4.2(b) of LPS 5?

The next question which arises is whether that breach denies legal force and effect to the decision of the Shire to approve the application. The answer to that question is a matter of statutory construction.
I am satisfied in all the circumstances that the breach by the Shire of the requirements of cl 4.4.2(b) of LPS 5 does invalidate the decision of the Shire to approve the development, and the error is therefore jurisdictional. I have reached this conclusion for the following reasons.
Whilst the choice of options as to how to proceed under cl 4.4.2 of LPS 5 is a matter of discretion, the text of cl 4.4.2(b) itself is expressed in precise and clear terms. It identifies that if the local government proceeds under this clause, it first determines that the use may be consistent with the objectives of the particular zone and 'thereafter' follows the advertising procedures in cl 64 of the deemed provisions of the PD Regulations in considering the application for planning approval. The text has a rule-like quality to it, in the sense that it specifies steps that must be taken before a final decision is made. The requirement that the local government determine that the land use may be consistent with the objectives of the particular zone does require an evaluative judgment to be made. However, the requirement that advertising take place 'thereafter', does not. The requirement that the advertising take place 'thereafter' is also not expressed in 'indeterminate language' that might convey that obligations imposed are goals to be achieved as opposed to rules to be obeyed. Determining whether there has been compliance with the requirement that the advertising take place 'thereafter' does not involve issues of fact and degree. These are factors which suggests that a breach of the requirement to advertise 'thereafter' is a jurisdictional error.
Clause 4.4.2 must also be considered in the context of LPS 5, and in particular the requirement that unless otherwise specified in LPS 5, all development applications require the approval of the council. A key element of the statutory regime is that such decisions are made in accordance with the requirements of (relevantly) the local planning scheme. LPS 5, being such a local planning scheme, establishes a framework whereby this decision must be considered in the context of the zoning of the land in question, including the objectives for that zone, the nature of the land use proposed by the application and the zoning table which identifies the extent to which particular land uses are considered to be permitted, not permitted or discretionary land uses for that zone.
The purpose of cl 4.4.2 in this regime is to address the situation where the land use proposed by the application does not fall within one of the identified land uses in the zoning table. Clause 4.4.2 specifies the steps that must be taken by the local government in such a situation, including providing different options for the local government as to how to respond in such a situation.
If a local government choses to follow the option contained in cl 4.4.2(b), then cl 4.4.2(b) identifies several steps that must be undertaken prior to a decision being made by the local government in relation to the application: first for the local government to determine whether the proposed land use could 'reasonably be determined as falling within the type, class or genus of activity of any other use category'; secondly for the local government to determine whether the land use proposed may be consistent with the objectives of the relevant zone; thirdly for the local government to 'thereafter' advertise the application; and fourthly for the local government to consider the application.
Understood in this context, the requirements of cl 4.4.2(b) are in the nature of an essential preliminary to the exercise of the Shire's power to determine a development application in which the proposed land use does not fall within any other identified land use in the zoning table and where the local government choses to proceed under cl 4.4.2(b). The requirements are part of a sequence of steps required as part of the decision-making process. This is a factor which suggests that a breach of the requirement to advertise 'thereafter' is a jurisdictional error.
I am also of the view that the objects of the statutory regime are advanced by holding that the requirements in cl 4.4.2(b) of LPS 5 are strictly complied with. Two of the purposes of the PD Act are to provide for an efficient and effective land use planning system in the State, and to promote the sustainable use and development of land in the State.[50] The regime by which these purposes are attained includes the system of state planning polices and local planning schemes to regulate the development of land in the State. The general object of local planning schemes is to make suitable provision for the improvement, development and use of land in the scheme area, including the zoning of land and the imposition of development controls.[51]
[50] PD Act, s 3(1).
[51] PD Act, s 69 and sch 7.
Requiring a local government to comply with the requirements of cl 4.4.2(b) promotes an efficient and effective system of land use planning, in that it ensures not only certainty and consistency in the decision-making process, but also that decisions are made with the benefit of all relevant information. Advertising of the application after the local government has determined that the land use may be consistent with the objectives of the relevant zone ensures that members of the public are aware of the Shire's decision that the land use may be consistent with the objectives of the zone and are able to provide comments and information on this important issue. No public inconvenience arises from requiring the Shire to comply with the requirements of cl 4.4.2(b) of LPS 5.

Grounds 1 - 3 - misconstruction of LPS 5 and/or failure to have regard to a relevant consideration

Grounds 1 - 3 of the application concern the question of whether the Shire has misconstrued the objectives of the Rural Smallholding zone and/or has failed to have regard to a relevant consideration, being those objectives.
Ground 1 considers these issues in the context of the Shire approval of the brewery and distillery land use, and grounds 2 - 3 (which should be read together) consider these issues in the context of the Shire approval of the restaurant.

Legal principles

A decision maker who materially misconstrues the scope of its decision-making power will make a jurisdictional error. A decision maker will also make a jurisdictional error if they fail to have regard to a relevant consideration. In Jacob v Save Beeliar Wetlands (Inc),[52] McLure P (Buss and Newnes JJA agreeing) summarised the legal principles applicable to an allegation of jurisdictional error based on an alleged failure to take into account a relevant consideration:
A relevant consideration is one which the decision-maker is obliged to take into account in the course of reaching the decision or conduct under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd. The legislation imposing the obligation to decide (or in this case, report and recommend) may expressly identify particular matters that must be considered or the obligation to consider may arise by implication from the subject matter, scope and purpose of the legislation. Any obligation to take into account a relevant consideration relied on as giving rise to jurisdictional error must of necessity be a condition of the validity of the decision.
[52] Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313 [50].

In the present case, the effect of cl 67(2)(a) of the deemed provisions of the PD Regulations is that when considering the application, the Shire was required to have 'due regard' to the aims and provisions of LPS 5. This necessarily includes the objectives of the Rural Smallholdings zone.
In Marshall v Metropolitan Redevelopment Authority,[53] Pritchard J considered the meaning of 'due regard' in the context of the Metropolitan Redevelopment Authority Act 2011 (WA). Her Honour found that, in that context, the phrase 'have due regard for' or 'have regard to' required the Metropolitan Redevelopment Authority to take into account, or give consideration to, the matters listed. Her Honour found that, in the context of that Act, the requirement meant that the authority must give 'active or positive consideration to the matters listed, to the extent that they apply in any particular case', whilst retaining a discretion to give such weight to those considerations as it considers appropriate in the circumstances. It is something less than a requirement that a decision-maker must apply or act in compliance with the matters listed.
[53] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [106] - [115].
I am of the view that the same approach applies to the requirement to have 'due regard' under cl 67(2) of the deemed provision of the PD Regulations, given the similar statutory context. I am also of the view that the reference to 'positive consideration' should not be taken to mean that the decision-maker is required to reach a conclusion that is consistent with the relevant factors identified in cl 67(2) of the deemed provisions of the PD Regulations. At all times, the requirement is to have 'due regard to' the factors.[54] The question of the weight given to the various factors is ultimately a matter for the decision maker.

What does the officer report state about the objectives of the Rural Smallholdings zone?

[54] See General Nominees Pty Ltd (Atf Family Trust Four) v The Metro Inner-North Joint Development Assessment Panel [2022] WASC 114 [85] - [88] and the authorities cited therein; Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371 [74].

The officer report does identify that the council is required to have due regard to the objectives of the Rural Smallholdings zone pursuant to cl 67(2) of the deemed provisions of the PD Regulations. There does not appear to have been any suggestion that the objectives were not relevant to the determination. The text of the relevant passages of the officer report is of significance and is set out below:[55]
[55] Craggs affidavit, CRC-6, p 378.
In considering an application for development approval, cl. 67(2) of the deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 requires a local government to have due regard to the following matters that are relevant to the application as detailed below.
(a)The aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area
The following aims and provisions of the Shire of Irwin Local Planning Scheme No. 5 (LPS5) are relevant to this application:
1.6 The Aims of the Scheme
d) to assist employment and economic growth by facilitating the timely provision of suitable land for retail, commercial, industrial entertainment and tourist developments as well as providing opportunities for home based employment;
f) to safeguard and enhance the character and amenity of the built and natural environment of the Scheme area;
4.2 Objectives of the Zones
4.2.9 Rural Smallholdings Zone
a) To provide for the use of land for minor rural pursuits, hobby farms, conservation lots and alternative residential lifestyle purposes where part-time income from cottage industries, home occupation and the use of the land for agriculture may be derived.
b) To preserve and enhance landscape quality, environmental values and conservation attributes.
The clear intent of the 'Rural Smallholdings' zone is to allow for rural pursuits that are consistent with the amenity of the locality and the landscape attributes of the land. A brewery (similar to a winery) is intrinsically linked to rural and agricultural practices and as such are entirely suitable and indeed commonplace in other rural areas throughout the State. The size and scale of the development does not sterilise continued use of the remainder of the site for minor rural pursuits.
The application is in keeping with elements of the rural character of the area and is consistent with the objectives of the zone.
The report then goes on to detail the requirements of the zoning table:[56]
[56] Craggs affidavit, CRC-6, p 378 - 379.
4.3 Zoning Table
The application seeks approval for a 'Brewery' and 'Restaurant' use classes. A 'Restaurant' is defined as:
restaurant means premises where the predominant use is the sale and consumption of food and drinks on the premises and where seating is provided for patrons, and includes a restaurant licensed under the Liquor Control Act 1988.
The Zoning Table of LPS5 lists 'Restaurant' as an 'A' use under the 'Rural Smallholdings' zone which means that the use is not permitted unless the local government exercises its discretion after advertising the application.
The 'Brewery' use class is not specifically mentioned in the Zoning Table of LPS5. Under cl. 4.4.2 of LPS5 where a land use is not specifically mentioned in the Zoning Table the local government may:
a) determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
b) determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
c) determine that the use is not consistent with the objectives of the particular zone and therefore not permitted.
It is important to note that the model provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 does define a brewery as follows:
brewery means premises the subject of a producer's licence authorising the production of beer, cider or spirits granted under the Liquor Control Act 1988.
On the basis of the analysis as outlined in this report, there is a clear foundation for Council to reason that the brewery component of the proposed development is consistent with, and does not otherwise undermine, the objectives of the 'Rural Smallholdings' zone and as such is capable of approval.
Finally, at a later point in the officer report the following conclusion is stated: [57]
Conclusion
Overall, it is assessed that the proposed development achieves a rural appearance that suits the rural aesthetic of the locality that is consistent with the objectives of the Rural Small Holdings zone. The application has appropriately responded to those relevant matters as prescribed in cl. 67(2) of the deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015.
It is considered that the application complies with the planning framework applicable to the site and the requirements of orderly and proper planning. Conditional approval is therefore recommended.

Has the Shire misconstrued the objectives of the Rural Smallholdings zone and/or failed to have regard to a mandatory relevant consideration?

[57] Craggs affidavit, CRC-6, p 382.

The applicants submit that the officer report demonstrates a fundamental misconstruction of the objectives of the Rural Smallholdings zone, and a complete failure by the council of the Shire to consider the objectives as properly construed. In relation to the restaurant, the applicants also submit that there is no discussion at all in the officer report of whether the restaurant component of the proposed development is consistent with the objectives of the Rural Smallholdings zone.
I accept the applicants' submissions.
Whilst the officer report reproduces the objectives of the Rural Smallholdings zone, the analysis which follows does not address the actual objectives contained in cl 4.2.9 of LPS 5.
The officer report states that the clear intent of the Rural Smallholdings zone is to 'allow for rural pursuits that are consistent with the amenity of the locality and the landscape attributes of the land'. That is not what the objectives provide. Clause 4.2.9(a) states that the objective is to provide for the use of land for the specified land uses. The officer report has therefore misstated the objectives. Further, the officer report does not then undertake any analysis or refer to how the land uses proposed in the application are consistent (or not) with any of the land uses specified in cl 4.2.9(a) of LPS 5. This lack of analysis is consistent with the misstating of the objectives.
The reference to 'rural pursuits' in the officer report is also inaccurate, as cl 4.2.9(a) refers to 'minor rural pursuits'. There is no discussion or analysis in the officer report as to how the development is (or is not) a 'minor rural pursuit', which again is consistent with the misconstruction and misstating of the objectives.
The officer report goes on to state that a brewery, which the report describes as being similar to a winery, is 'intrinsically linked to rural and agricultural practices and as such are entirely suitable and indeed commonplace in other rural areas throughout the State'. Leaving aside the issue of whether a brewery is similar to a winery, this statement does not address any of the objectives contained in cl 4.2.9(a) or cl 4.2.9(b) of LPS 5.
The officer report also states that 'the size and scale of the development does not sterilise continued use of the remainder of the site for minor rural pursuits'. This statement reveals a fundamental misconstruction of the objectives for the Rural Smallholdings zone. The Shire was required to have due regard to whether the development as a whole would provide for the use of land for (relevantly) minor rural pursuits, and not whether only the remainder of the Site would be able to be used for minor rural pursuits.
On the basis of what is contained in the officer report, I am satisfied that the Shire, when making its decision, has misconstrued and misunderstood the objectives of Rural Smallholdings zone.
I am also of the opinion that although the Shire did have regard to the objectives of the Rural Smallholdings zone, the misconstruction and misunderstanding of the objectives of the Rural Smallholdings zone resulted in a complete failure on the part of the Shire to give 'active or positive consideration' to the objectives of the Rural Smallholdings zone as properly construed.
In the context of the restaurant land use, the officer report provides as follows:[58]
The Zoning Table of LPS5 lists 'Restaurant' as an 'A' use under the 'Rural Smallholdings' zone which means that the use is not permitted unless the local government exercises its discretion after advertising the application.
[58] Craggs affidavit, CRC-6, p 379.
However, the officer report does not contain any discussion of the extent to which the restaurant land use is (or is not) consistent with the objectives of the Rural Smallholdings zone. There is only a separate reference to the brewery, before the overall conclusion that:[59]
Overall, it is assessed that the proposed development achieves a rural appearance that suits the rural aesthetic of the locality that is consistent with the objectives of the Rural Small Holdings zone. The application has appropriately responded to those relevant matters as prescribed in cl. 67(2) of the deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015.
It is considered that the application complies with the planning framework applicable to the site and the requirements of orderly and proper planning. Conditional approval is therefore recommended.
[59] Craggs affidavit, CRC-6, p 382.
There is nothing in this concluding paragraph which addresses whether the restaurant component of the development is consistent (or not) with the objectives of the Rural Smallholdings zone at all. To the extent there is a reference to overall development, it does not address the objectives properly construed. Accordingly, I am also satisfied that there has been a failure by the Shire to give 'active or positive consideration' to whether the land use of the proposed restaurant is consistent with the objectives of the Rural Smallholdings zone.
I am satisfied that these errors are material to the ultimate decision made by the Shire to approve the application. It is a mandatory relevant consideration that the Shire have due regard to the aims and provisions of LPS 5. This includes the objectives of the relevant zone. The zoning of land under a local planning strategy is a key element that guides decision making in relation to applications for planning and development approval. The Shire's misconstruction of these objectives gives rise to a material error as there is a realistic possibility that the decision that was made could have been different had the Shire not misconstrued the objectives of the Rural Smallholdings zone. Further, the restaurant is a significant component of the application and the failure to consider at all whether the restaurant component was consistent with the objectives of the Rural Smallholdings zone gives rise to a material error as there is a realistic possibility that the decision that was made could have been different. The errors are therefore jurisdictional.

Ground 1 - unreasonableness

As part of ground 1 of the application for judicial review the applicants also claim that the decision of the Shire was unreasonable in the sense of 'outcome unreasonableness' as that concept is explained in the decision of Minister for Immigration and Citizenship v Li.[60]
[60] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2023) 249 CLR 332.
In Minister for Immigration and Citizenship v Li,[61] the High Court affirmed the principle that the legislature is taken to intend a statutorily conferred discretionary power will be exercised reasonably. Thus, the discretion is conferred on the implied condition that the duty must be performed within the bounds of reasonableness. There are two types of legal unreasonableness: process unreasonableness and outcome unreasonableness. Process unreasonableness arises where an underlying jurisdictional error has been identified in the decision-making process (eg the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality). Outcome unreasonableness arises in circumstances where, without necessarily identifying another underlying jurisdictional error, the outcome is seen by the supervising court as lacking an evident and intelligible justification.[62]
[61] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2023) 249 CLR 332 [63], [88] - [89].
[62] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63], [88] - [89]; Jacob v Save Beelier Wetlands Inc [2016] WASCA 126; (2016) 50 WAR 313 [67] - [68] (McLure P).
In light of my findings above, it is not strictly necessary to consider this further basis for the submission that the Shire made a jurisdictional error. The applicants however submit that it is appropriate to consider outcome unreasonableness, because a finding that the decision was subject to jurisdictional error on the other grounds would only result in the decision being quashed and sent back to the Shire to consider again according to law. The applicants submit that as the decision was also legally unreasonable on an outcome basis, the appropriate remedy is simply to quash the decision and not have the Shire reconsider the decision according to law.
The applicants submit that the Shire's decision that the land use of a brewery may be consistent with the objectives of the Rural Smallholdings zone was unreasonable given the nature, size and scale of the proposed development.

I am not satisfied that the decision was unreasonable in the sense submitted by the applicants. In my view, the underlying jurisdictional error made by the Shire was misconstruing the objectives of the Rural Smallholdings zone and/or failing to have regard to a relevant consideration, being those objectives as properly construed. In my view, because of these errors of law made by the Shire, the Shire failed to ask itself the correct questions.
The effect of the misconstruction of the objectives of the Rural Smallholdings zone resulted in the Shire not having due regard to those objectives, properly construed, in the context of the brewery and the distillery. The Shire also did not consider at all whether the restaurant was consistent with the objectives of the Rural Smallholdings zone.
In the context of unreasonableness, these are examples of process unreasonableness. The effect of these errors is that the Shire misconstrued its task and did not engage the decision-making process as required under the relevant statutory regime. It is not a case of the Shire engaging in the correct process but the outcome lacking an evident and intelligible justification.

Ground 5

By ground 5 the applicants submit that the Shire erred in law by failing to determine, as required by cl 4.4.2 of LPS 5, that the land uses of a brewery and distillery were properly characterised as falling within the category of 'industry-general' or 'industry-light'. Both of these land use categories are designated as an 'X' use in the Rural Smallholdings zone. If the brewery and the distillery fall within these land use categories, then in accordance with cl 67(1) of the deemed provisions of the PD Regulations, that component of the application could not be granted by the Shire.
In their written submissions, the applicants submit that the Shire made an error of law in failing to correctly classify the land use, and then in approving the application when at law it could not. In oral submissions counsel for the applicants also submitted that the Shire's approval of the application in these circumstances was unreasonable.[63]
[63] ts 06/02/2024, 25.
I am not satisfied that it is appropriate for me to consider this question or exercise my discretion to grant a writ of certiorari on the basis of ground 5 of the application. I am not satisfied on the material before the court that the Shire has actually considered the question of whether the land uses of a brewery and a distillery cannot reasonably be determined as falling within the type, class or genus of activity of any other use category, as required by the opening words of cl 4.4.2 of LPS 5.
There is no recorded decision of the Shire in relation to this question in the minutes from the meeting on 27 June 2023.
Further, the officer report does not include any reference to the need for the Shire to consider whether the uses of a brewery and a distillery cannot reasonably be determined as falling within the type, class or genus of activity of any other use category. The officer report identifies that as the land use of a brewery is not specifically mentioned in the zoning table, cl 4.4.2 of LPS 5 is applicable. The officer report then goes on to set out the requirements of cl 4.4.2, but omits the introductory paragraph and only includes the following:[64]
a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
b) determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
c) determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
[64] Craggs affidavit, CRC-6, p 379.

There is no discussion in the officer report as to whether the land uses of a brewery and a distillery could reasonably be determined as falling within the type, class or genus of any other land use zone, including those referred to by the applicants in their submissions, being 'industry-general' or 'industry-light'. There is also no discussion as to whether any of the land uses are the dominant land use or subsidiary land uses. There is also no reference to any earlier decision on this question being made by the Shire. Given the officer report summarised the relevant material and steps that had been undertaken to date in relation to the application, I consider the lack of any reference to any such earlier decision to be a basis upon which I can infer that no such earlier decision was made.
The letter sent by the Shire to the applicants on 24 January 2023 as part of the consultation process also does not make any reference to any decision as to whether the land uses of a brewery and a distillery could reasonably be determined as falling within the type, class or genus of any other land use zone. The letter only refers to the land use being 'considered a use not listed'.[65] It is not clear whether this is a reference to the land uses not being listed in the zoning table, or the question of whether the land uses could reasonably be determined as falling within the type, class or genus of any other land use zone. There is no reference in the letter to any earlier decision in relation to this question being made by the Shire.
[65] Craggs affidavit, CRC-1, p 5.
In addition, no other documents evidencing the Shire's decision-making process were filed by the Shire prior to it filing a notice of intention to abide. Again, whilst the applicants bear the burden of proof, it is relevant that the Shire has not filed any additional documents evidencing the decision-making processes of the Shire over those filed by the applicants.
In these circumstances, I am satisfied that the Shire did not consider the question of whether the land uses of a brewery and distillery could reasonably be determined as falling within the type, class or genus of any other land use zone, as required by cl 4.4.2 of LPS 5. This failure by the Shire is a further breach (over and above that established by ground 4) of the requirements of cl 4.4.2 of LPS 5 and constitutes a breach of a condition of the Shire's statutory decision-making power.
For the same reasons as I outlined in [84] - [92] of these reasons, I am also of the view that the statutory regime evidences a purpose that such a breach invalidates the subsequent decision of the Shire to approve the development. The requirement contained in the opening paragraph of cl 4.4.2 is expressed in precise and clear terms and is in the nature of an essential preliminary and part of a sequence of steps required as part of the decision-making process.
The applicants accept this proposition but invite me to go further and conclude that the brewery and distillery component of the application falls within the land use category of 'industry-general' or 'industry-light'.[66] Both of these land use categories are designated as an 'X' use in the Rural Smallholdings zone. If this is correct, then in accordance with cl 67(1) of the deemed provisions of the PD Regulations, that component of the application cannot be granted.
[66] ts 06/02/2024, 22 - 25.
However, in the absence of any consideration and decision by the Shire in relation to this issue, it is not appropriate for this court to consider this issue at first instance. The decision-making power in relation to the application is vested in the Shire and not the court.
To the extent the applicants' submission is that the decision was unreasonable, then as with ground 1, I am of opinion that the error made is an example of process unreasonableness and not outcome unreasonableness. The effect of the error is that the Shire misconstrued its task and did not engage the decision-making process as required under the relevant statutory regime. It is not a case of the Shire engaging in the correct process but the outcome lacking an evident and intelligible justification.
The appropriate course is for the Shire to consider the application afresh, according to law. The matters which have been raised by the applicants in all the grounds of this judicial review application are matters which go to relevant considerations by the Shire in the exercise of its statutorily conferred discretionary decision-making power.

Conclusion

For the reasons set out above, the Shire made a jurisdictional error when making the decision to approve the application.
The applicant seeks a writ of certiorari. Such a remedy is discretionary, and I am of the view that it is appropriate in the exercise of my discretion to order such a remedy in this case. The decision of the Shire remains operative and as such a writ of certiorari is required to quash the decision. The applicants, as the immediate neighbours to the Site, cannot be described as a 'stranger' to the decision and are directly impacted by the decision. The application for judicial review was lodged promptly one month after the decision of the Shire was made. There is no evidence before the court that the development has been completed by the other party.[67]
[67] Compare Sanders v City of South Perth [2019] WASC 226.
I will hear further from the parties in relation to the appropriate orders to give effect to these reasons, and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Honourable Justice Seaward
14 NOVEMBER 2024