GOLDRANGE PTY LTD and CITY OF WANNEROO - [2011] WASAT 48

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GOLDRANGE PTY LTD and CITY OF WANNEROO [2011] WASAT 48

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 17 MARCH 2011

DELIVERED : 17 MARCH 2011

FILE NO/S: DR 385 of 2010
DR 386 of 2010
DR 33 of 2011

BETWEEN: GOLDRANGE PTY LTD
Applicant
AND
CITY OF WANNEROO
Respondent

Catchwords:

Town planning Development applications Gourmet delicatessen Wine sales Sale of cooked fish and chips Permissible uses relevantly restricted to 'growers mart which means any land or buildings used for the wholesale distribution or retail sale of primary products, including fruit and vegetables, meat, fish and bread' Whether cheese, wine, cooked fish and chips and other products resulting from the processing of primary products are primary products' Words and phrases: 'primary products'

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 1.9.3, cl 9.8.2
Planning and Development Act 2005 (WA), s 252(1)

Result:

DR 385 of 2010 - condition 3 of development approval varied
DR 386 of 2010 and DR 33 of 2011 - development applications refused

Category: B

Representation:

Counsel:

Applicant: Mr PG McQueen with Mr BR McMurdo
Respondent: Mr CA Slarke

Solicitors:

Applicant: Lavan Legal
Respondent: McLeods

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

Attwell and City of Albany [2009] WASAT 38
Australian Native Landscapes Pty Ltd v Warringah Shire Council [1989] NSWLEC 3
Domachuk v Baulkham Hills Shire Council (1992) 77 LGRA 395
Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Goldrange Pty Ltd is the owner of the 'Drovers Place Complex' on Wanneroo Road, Wanneroo and applied for development approval for the use of various parts of the site as a gourmet delicatessen, for wine sales and for the sale of cooked fish and chips. Land use permissibility at the site is specified in a local structure plan. Relevantly, in order to be capable of approval, the proposed uses must fall within the 'growers mart' land use, which is defined in the local structure plan to mean 'the wholesale distribution or retail sale of primary products, including fruit and vegetables, meat, fish and bread'.
The City of Wanneroo approved the gourmet delicatessen subject to conditions restricting the products that can be sold to a specified list and precluding the further preparation or combining together of any of the products. The City of Wanneroo refused development approval for wine sales and for the sale of cooked fish and chips. Goldrange Pty Ltd sought review of these decisions by the Tribunal. The Tribunal was called upon to determine the meaning of the expression 'primary products' in the definition of 'growers mart' and then to determine which of the products proposed to be sold from the gourmet delicatessen are 'primary products' and whether wine and cooked fish and chips are 'primary products'.
Following the hearing, the Tribunal gave an oral decision in which it determined that a 'primary product' is something produced that is a naturally occurring food, such as meat, grain or fish, or a naturally occurring thing, such as wool, cotton or wood. A 'primary product' is something produced in a primary industry, such as farming, forestry or mining, involving the growing, producing, extracting, etc, of natural resources. Subject to one qualification, a 'primary product' does not include a new product produced by the processing of primary products, because a new product produced by the processing of primary products is a 'secondary product'. Subject to the same qualification, the processing of 'primary products' does not occur in a 'primary industry', but rather, occurs in a 'secondary industry'.
The qualification to the two preceding statements is that limited processing of a primary product in the form of harvesting, cleaning, cutting, packaging or other minor processing so as to enable it to be brought to market and sold is incidental to the production of the primary product and an incident or an incidental aspect of a primary industry. However, the qualification does not include the processing of a primary product to create another product, or the processing of two or more 'primary products' together to create another product. Such processing of a 'primary product' or of two or more 'primary products' involves the production of a 'secondary product' and occurs in a 'secondary industry'.
The Tribunal determined that, with one exception, in the condition of approval, the City of Wanneroo correctly identified the only products proposed to be sold at the gourmet delicatessen that are 'primary products', although the City of Wanneroo was arguably too lenient to Goldrange Pty Ltd in including some products. As the Council did not seek the deletion of any of these products, the Tribunal did not remove any. The Tribunal added 'frozen berries and vegetables' to the list, as these are 'primary products' subject to minor processing to enable them to be brought to market and sold. The Tribunal also found that it was reasonable and appropriate to impose a condition precluding the further preparation or combining together of any products in order to prevent primary products from being converted into secondary products.
The Tribunal found that wine and cooked fish and chips are not 'primary products' as they are not naturally occurring foods or things, but rather, are new products produced by the processing of primary products.
The Tribunal varied the conditional approval of the gourmet delicatessen to allow the sale of 'frozen berries and vegetables', and refused development approval for wine sales and the sale of cooked fish and chips.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

These proceedings involve three applications for review brought by Goldrange Pty Ltd (Goldrange) in relation to decisions of the City of Wanneroo (City or Council) concerning development applications made by Goldrange for approval under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme) for the use of three areas within the 'Drovers Place Complex' at No 1397 (Lot 810) Wanneroo Road, Wanneroo (Drovers Place or site) for various purposes.
DR 385 of 2010 is an application for review of conditional approval of the use of Unit 7 at Drovers Place as a 'gourmet delicatessen'. In particular, Goldrange contests conditions 3 and 4 of the approval granted by the City. DR 386 of 2010 is an application for review of the refusal to allow the use of Unit 6 at Drovers Place for 'wine sales'. DR 33 of 2011 is an application for review of the refusal to allow the use of an existing fish shop to also sell cooked fish and chips.
Each application for review was commenced by Goldrange pursuant to s 252(1) of the Planning and Development Act 2005 (WA). The three proceedings were listed for determination together as they raise common issues.

Background

In DR 385 of 2010, the proposed 'gourmet delicatessen' use involves the sale of various products produced off site. Goldrange submitted a list, dated 1 September 2010, of products which are intended to be sold from Unit 7. The list includes the following:
The following selection of primary products is intended for retail and wholesale sale at the Drovers Growers Mart Gourmet Deli:
1.Australian and European cheeses maybe 50 different varieties.
2. A large selection of cold meats, Ham, Beef, Salami etc. (These are just a few that will be on offer including dry meats).
3. Marinated and packaged olives, sundried tomatoes, mushrooms, capsicums, eggplant, fresh[]made pizza bases (not cooked).
4. Cream, yoghurt, variety of dips and pesto.
5.Chutneys, olive oil, vinegars, dressings.
6.Fresh and dry pasta and salads.
7.Nuts, dried fruit and a variety of cracker biscuits.
8.Crushed tomatoes, includes bottled / canned gourmet sauces.
9.Frozen berries and veggies.
10.Gourmet icecreams.
11.Gourmet family pies.
12.Condiments and Spices.
13.Variety of teas and coffees.
14.Gourmet soups.
15.Other primary products.
This list is a broad overview of primary products that are intended to be offered for retail or wholesale sale; it is not an exclusive list. There are other primary products that fall within the scope of the growers mart land use that may be sold in the gourmet deli but are not listed here.
On 28 October 2010, the Council granted development approval for the proposed use of Unit 7 as a gourmet delicatessen subject to four conditions as follows:
1.This approval only relates to the proposed change of use for the area highlighted on the attached plan (Unit 7). It does not relate to any other development on the lot.
2.The approved use is for 'Growers Mart' (proposed in the form of a gourmet deli) as defined under the Agreed Drovers Place Precinct Local Structure Plan No. 47, as stated below:
Growers Mart: means any land or buildings used for the wholesale, distribution and retail sale of primary products including fruit and vegetables, meat, fish and bread.
A change of use from a Growers Mart will require the approval of the City.
3.The sale of products within Unit 7 is limited to primary products in accordance with the definition of Growers Mart. Unless otherwise approved by the City, no products other than the following products may be sold:
a)fresh fruit;
b)fresh vegetables;
c)meat (including cold and dry meats);
d)fish (uncooked);
e)bread (including uncooked pizza bases);
f)marinated and packaged olives, sundried tomatoes, mushrooms, capsicums and eggplant;
g)nuts and dried fruit;
h)green salads (undressed);
i)crushed tomatoes; and
j)teas and coffees (dry; not in the form of a drink).
4.The further preparation or combining together of any of the products referred to in condition 3 for sale from, or service to customers on, the premises as food ready to be eaten is not permitted.
As noted earlier in DR 386 of 2010, Goldrange seeks review of the refusal of the City to grant development approval for the use of Unit 6 at Drovers Place for 'wine sales'. On 26 October 2010, the City refused to grant approval to this proposed use for the following reasons:
1.The proposed use does not fall within the definition of a Growers Mart as defined in Agreed Structure Plan No. 47 as the products proposed to be sold are not primary products.
2.The proposed use can be defined as falling into the definition of a 'liquor store' under the provisions of the City of Wanneroo District Planning Scheme No. 2, which is not a use permissible on the subject land.
As also noted earlier, DR 33 of 2011 involves an application for review of the refusal by the City of an application for the sale of cooked fish and chips from an existing fish shop. The development application was refused by the City on 11 January 2011 'on the grounds that the proposed use of land for the sale of cooked fish and chips is not permitted under Local Structure Plan No 47'.
The parties agree that, in effect, Drovers Place is zoned Special Use for the purposes of DPS 2 by the operation of cl 9.8.2 of the Scheme and the terms of the Drovers Place Precinct Local Structure Plan No 47 (LSP 47) which applies to Drovers Place. Clause 9.8.2 of the Scheme states:
Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:
a)the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and
b)provisions in the Scheme applicable to land in those classifications under the Scheme shall apply with the necessary changes or alterations to the Agreed Structure Plan area.
LSP 47 is an 'agreed structure plan' for the purposes of the Scheme and therefore, land use permissibility in relation to Drovers Place is to be determined by reference to the terms of LSP 47. Of particular significance are the terms of cl 7.1, concerning objectives of LSP 47, and cl 7.2, and specifically cl 7.2.1, dealing with use permissibility at Drovers Place. Clause 7.1 of LSP 47 includes the following:
The objectives of the Drovers Place Precinct Structure Plan are to [sic]:
a)To provide a flexible planning framework for the structure plan area that is responsive to a range of suitable development and land use options.
b)To provide for the coordinated development of the structure plan area and the orderly provision of appropriate infrastructure.
Clause 7.2.1 of LSP 47 concerns use permissibility in the area comprising Drovers Place that is identified in the heading to cl 7.2 as a 'Special Use Zone Restricted Use Precinct'. Clause 7.2.1 of LSP 47 states in part as follows:
Land use permissible within this precinct shall be restricted to:
•retail nursery with incidental café;
•landscape supplies;
•growers mart which means any land or buildings used for the wholesale, distribution and retail sale of primary products including fruit and vegetables, meat, fish and bread;
•showroom; and
•selfstorage units.

Issues for determination

The issues for determination in these proceedings are as follows:
1)What is the meaning of 'primary products' in the definition of 'growers mart' in LSP 47?
2)Which of the products in the applicant's list of products dated 1 September 2010 are 'primary products'?
3)Is condition 4 of the development approval conditions imposed by the City in relation to the proposed gourmet delicatessen an appropriate condition?
4)In regard to the proposed wine sales, is wine a 'primary product' or is the sale of wine otherwise permissible?
5)Is the proposed sale of cooked fish and chips a permissible use, in that it involves either the sale by retail of 'primary products' or is an incidental use?
The first issue is an issue in relation to each proceeding; issues 2 and 3 are issues in relation to DR 385 of 2010; issue 4 is an issue in relation to DR 386 of 2010; and issue 5 is an issue in relation to DR 33 of 2011. I will address each of these issues in turn.

Issue 1 - What is the meaning of 'primary products' in the definition of 'growers mart' in LSP 47?

The term 'primary products' is not defined in either DPS 2 or LSP 47. In accordance with cl 1.9.3 of DPS 2, the term is therefore to bear its 'normal and common meaning'. The most relevant definitions of the adjective 'primary' in the Macquarie Dictionary (5th ed, 2009) (Macquarie Dictionary) at 1318 are as follows:
5. of or relating to the production of naturally occurring foods as meat, grains, fish, etc., or of naturally occurring things as wool, cotton, etc,: a primary industry. Compare secondary (def. 4).
and
7. original, not derived or subordinate; fundamental; basic.
Significantly, definition 4 of the adjective 'secondary', to which the first definition of 'primary' that I have referred to is to be compared, is as follows at 1489 of the Macquarie Dictionary:
4. of or relating to the processing of primary products: a secondary industry.
The noun 'product' is relevantly defined at 1324 of the Macquarie Dictionary as:
1. a thing produced by any action or operation, or by labour; an effect or result. 2. something produced; a thing produced by nature or by a natural process.
It is also to be noted that the following nouns are defined as follows:
'Primary industry' is defined at 1318 of the Macquarie Dictionary as:
any industry such as dairy farming, forestry, mining, etc., which is involved in the growing, producing, extracting, etc., of natural resources.
'Primary producer' is defined at 1318 of the Macquarie Dictionary as follows:
1. someone who works in a primary industry as a farmer, a fisher, etc; 2. a business or industry devoted to primary production.
'Secondary industry' is defined at page 1489 of the Macquarie Dictionary as:
an industry involved in the production of manufactured goods.
A 'primary product' is therefore something produced that is a naturally occurring food, such as meat, grain or fish, or a naturally occurring thing, such as wool, cotton or wood. A 'primary product' is something produced in a primary industry, such as farming, forestry or mining, involving the growing, producing, extracting, etc, of natural resources.
Subject to one qualification, a 'primary product' does not include a new product produced by the processing of primary products, because a new product produced by the processing of primary products is a 'secondary product'. Subject to the same qualification, the processing of 'primary products' does not occur in a 'primary industry', but rather, occurs in a 'secondary industry'.
The qualification to the two preceding statements is that limited processing of a primary product in the form of harvesting, cleaning, cutting, packaging or other minor processing so as to enable it to be brought to market and sold is incidental to the production of the primary product and an incident or an incidental aspect of a primary industry. However, the qualification does not include the processing of a primary product to create another product, or the processing of two or more primary products together to create another product. Such processing of a primary product or of two or more primary products involves the production of a secondary product and occurs in a secondary industry.
This view is supported by the reasoning of Stein J in Domachuk v Baulkham Hills Shire Council (1992) 77 LGRA 395 at 398. In that case, the applicant appealed against the refusal of the respondent council to grant development consent with respect to several uses claimed to be for the purpose of 'rural industry' within the meaning of the Baulkham Hills Local Environmental Plan 1991. These included the growing of mushrooms on a small scale, the bagging of spent mushroom compost for sale, the mixing of numerous imported products and the spent compost to produce various bag potting mixes for sale and the sale of imported products such as peat moss, charcoal, leaf mould, pine bark and cow and poultry manure in their imported states. The Baulkham Hills Local Environmental Plan 1991 defined 'rural industry' to mean 'handling, treating, processing or packaging of primary products and includes the servicing in a workshop of plant or equipment used for rural purposes in the locality'.
At 398 his Honour observed as follows:
Are the various items imported onto the site "primary products"? What is a "primary product" for the purposes of the definition in the local environmental plan? In my opinion "primary" connotes being of the first order so, for example, a grain is a primary product. The handling, processing or packing of grain would therefore be a rural industry.
…
Have they therefore ceased to be primary products and become merely the ingredients in the manufacture of the various potting mixes produced on the premises? In my view this is the correct position and the activities which are occurring on the premises are not a rural industry as defined in the local environmental plan but more in the nature of an industry involving a manufacturing process as defined. The various products imported to the site are undergoing a secondary processing. …
His Honour therefore distinguished between primary products and the products produced by a secondary or manufacturing process. However, in the absence of this decision, I would still come to the interpretation of the term 'primary products' that I referred to earlier.

A purposive interpretation of the term 'primary products' would not require a different result. It is clear from cl 7.2.1 of LSP 47 that the use permissibility provision relating to the Special Use Zone Restricted Use Precinct comprising Drovers Place is intended to limit the range of goods that can be sold from the site. In particular, in relation to a 'growers mart', the local structure plan specifically defines this term to mean 'any land or buildings used for the wholesale distribution and retail sale of primary products, including fruit and vegetables, meat, fish and bread'.
Goldrange made a number of submissions in relation to the proper interpretation of the term 'primary products'. Firstly, it contended that the result of the processing of raw materials or a combination of raw materials to create a different product, for example, the processing of milk to create cheese, butter or yoghurt, involves the creation of a primary product. According to Goldrange's submission put by Mr Paul McQueen, who appeared with Mr Brian McMurdo on its behalf, '"primary products" means products that are related to or result from the processing of naturally occurring foods'.
However, this submission cannot stand, having regard to the ordinary meaning of the expression 'primary products' referred to earlier. The processing of raw materials, which are primary products, to create a different product involves the manufacture or creation of a secondary product, whether the different product is a food or not.
There are two flaws in Goldrange's submission pointed out by Mr Slarke, who appeared for the City, or perhaps two aspects or expressions of the same flaw. Firstly, Goldrange's submission confuses the 'primary product' in the definition of 'growers mart' with the product that results from the processing of one or more primary products. Fish, potato, timber and wheat are examples of 'primary products'. However, cooked fish and chips, a timber bookcase and a loaf of bread that result from the processing of one or more primary products are secondary products. Secondly, Goldrange's submission does not ultimately give effect to the adjective 'primary' which qualifies the noun 'product'.
Goldrange's second submission drew attention to the express inclusion of 'bread' in the definition of 'growers mart'. Goldrange submitted that the fact that primary products are cooked for sale 'does not offend the character of the goods as "primary products"'. For example, bread is a cooked product presented in a variety of forms 'but remains a primary product'. Goldrange then sought to apply this analysis to the cooking and presentation of fish and chips, as proposed in DR 33 of 2011. It submitted that, like bread, the fish and chips, while cooked, remain 'primary products' within the meaning of that term in the definition.
It is true that bread is a cooked good. However, cl 7.2.1 of LSP 47 specifically extends the ordinary meaning of the expression 'primary products' to include bread. The word 'includes' in a statutory definition usually has the effect of extending the scope of the words that precede it. As the learned authors DC Pearce and RS Geddes say, at para 6.56 of Statutory Interpretation in Australia (6th ed, 2006):
It is usual to find one or other of [the] expressions ['means' and 'includes'] where a word or phrase is being defined in legislation. The orthodox and, it is submitted, the correct approach to the understanding of the effect of these expressions is that 'means' is used if the definition is intended to be exhaustive while 'includes' is used if it is intended to enlarge the ordinary meaning of the word [citations omitted].
In this case, the definition of 'growers mart' uses both terms 'means' and 'including'. The words that follow 'means' exhaustively defines the meaning of 'growers mart' such that it is not permissible to have regard to the ordinary meaning of the words 'growers mart' in interpreting this land use classification. The word 'including' after the words 'primary products' is intended to enlarge the ordinary meaning of the words 'primary products', although it is to be noted that, in relation to the immediately following words 'fruit and vegetables, meat, fish', these words appear to be declaratory of the term 'primary products' as it would be understood according to its normal and common meaning. The inclusion of 'bread' after the word 'including' indicates that the ordinary meaning of 'primary products' is extended or enlarged to include bread. Bread would not otherwise be encompassed within the term 'primary products', and the clause specifically allows it. That fact, however, does not assist Goldrange in relation to any aspect of the proposed uses, except for the sale of pizza bases from the gourmet delicatessen, which are a form of bread and which the Council has accepted as falling within the definition of 'growers mart'.
Mr McQueen submitted that the inclusion of bread indicates an expanded range of cooked products generally as being encompassed within the meaning of 'primary products'. However, as Mr Slarke submitted, the inclusion of bread expands the meaning of 'primary products' to include bread and only bread. The definition does not say as it could have 'including … cooked foods'; it says 'including … bread'. Moreover, as Mr Pasqualino Bracone, a town planner and the Manager of Planning Implementation at the City, explained in evidence, this result that flows as a matter of ordinary statutory interpretation reflects the town planning intention of the provision. It was thought, correctly, by the drafters of LSP 47 that without including the word 'bread', bread would be excluded. However, the inclusion of the term 'bread' does not expand the meaning of 'primary products' in the manner suggested by Goldrange.
Thirdly, in the statement of issues, facts and contentions, Goldrange drew attention to the words 'growers mart' at the beginning of the relevant clause. In submissions made before me today, these words were not advanced as material in the interpretation of the words 'primary products'. However, for completeness, I note that it would not be permissible to have regard to the ordinary meaning of the words 'growers mart', given that it is a defined term. However, if one were to have regard to those words, they would not assist Goldrange. A 'grower' is relevantly 'someone who grows anything', at 741 of the Macquarie Dictionary. A 'mart' is a 'market; … trading centre … a shop', at 1026 of the Macquarie Dictionary. The ordinary meaning of the expression 'growers mart' would therefore be a market or shop used by someone who grows anything to sell what they grow, or perhaps by someone else to sell what a grower has grown. If there were an apostrophe following 'growers', then the term would likely bear the former rather than the latter interpretation. It is unnecessary to decide whether a 'growers mart' allows a nongrower to sell what a grower has grown as, in any case, this argument was not ultimately relied on and would not assist Goldrange.
Fourthly, Goldrange relied on opinion evidence of Mr Edward Turner, a consultant town planner. As the Tribunal is not bound by the rules of evidence, it often hears evidence by experts within specialist fields about questions that are ultimately matters of statutory interpretation. The Tribunal, of course, must come to its own view, but it is often interested in the views informed by different disciplines.
Mr Turner expressed the view that 'a "primary product" is primary produce which has been the subject of an action or operation (a process) or by labour to bring it into existence'. Mr Turner seems to have based this view not only on some dictionary definitions referred to above, but also on a wide survey of miscellaneous publications, including federal government reports on trade, food standards, legislation from other States in other contexts, administrative guidelines for export grants and other documents.
Tremendous care needs to be exercised in having regard to such miscellaneous publications in the interpretation of legislation. Each document no doubt was published in a particular context and for a particular purpose, whether statutory or otherwise. The legislation in particular contains inclusive definitions that plainly extend ordinary meaning of terms, no doubt for particular statutory purposes, but that only serves to highlight that it is, with respect, unhelpful to have any considerable regard to these other publications.
In any case, I note Mr Turner's view that a 'primary product is primary produce which has been the subject of an action of operation (a process) or by labour to bring it into existence' is not consistent with the normal and common meaning of the words 'primary products' as determined earlier. The interpretation would also be incredibly wide in scope. For example, it would include a wooden wardrobe, a woollen suit or a cotton towel. That could not have been the intention of the very detailed land use provision in cl 7.2.1 of LSP 47.
Even if Mr Turner's suggested interpretation were to be taken to be restricted to food which was a matter discussed in evidence and about which he was questioned by Mr Slarke, as Mr Turner fairly conceded under crossexamination, a restaurant would come within the definition of 'growers mart' because the logical consequence of his suggested interpretation is that any food or beverage produced from a primary product in a restaurant would be in itself a 'primary product'. Again, while perhaps not as extensive as would be the effect of Mr Turner's suggested interpretation if it were not restricted to food, even if the produce were restricted to food, it could not have been the intention of the detailed land use provision.
Finally, Goldrange sought to rely on extracts from three decided cases. The first is a decision of the New South Wales Court of Appeal in Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333. This was an appeal against a decision of Bannon J in the New South Wales Land and Environment Court declaring invalid a development application granted by the Mulwarree Council to the appellants to use certain land for the purpose of conducting the manufacture of mushroom compost. Meagher JA, with whom the President, Mason J, agreed, said the following:
It is common ground that if such manufacture can properly be designated as "rural industry" the Council had the power to grant the development application; if it cannot, the Council did not. Bannon J held that it was manifestly wrong to classify the process as a "rural industry".
…
The end product, mushroom compost, consists of a mixture of water, stable straw (and therefore often mixed with horses' faeces and urine), poultry manure, cotton seed husks, cotton seed meal and natural gypsum. This mixture is allowed partially to decompose, and it is aerated and watered from time to time to achieve that result. At a later stage mushroom spore are introduced. The final product is laid out on a surface to allow the fungi to grow to the point where they are fit for human consumption.
It is apparent that the Council considered that each ingredient in the mixture was a "primary product", and therefore the manufacture of the compost consisted of the "processing" or primary products. It was the unenviable task of the respondents to demonstrate that this view was "devoid of plausible justification"[,] not merely that it was wrong: see Hope v Bathurst City Council (1980) 144 CLR 1 at 79; 41 LGRA 262 at 226268. Despite the learned trial judge's expression of opinion, I do not think they discharged that task.
In my view the Council's view was not only "justifiable", it was probably correct. Each individual item in the mixture seems to me to be classifiable as a "primary product": straw, for example, is simply part of a crop. The fact that the end result (the compost itself) is different from each of the ingredients a point stressed heavily by Mr T Robertson does not seem to me to alter this fact. Indeed, it may well be that the compost itself is a "primary product". Cheese is a different product from milk, and yet I should have thought that the manufacture of cheese was a rural industry. (Emphasis in bold added)
As Mr Slarke pointed out, the Court of Appeal was not required to decide whether compost is itself a 'primary product'. It was required to decide whether it was 'devoid of plausible justification' for the Council to classify a compost manufacturing facility as a 'rural industry'. That definition required that each of the ingredients of the manufacturing process be 'primary products'.
While the Court expressed the view that compost may be a 'primary product', that view was clearly obiter, tentative ('it may well be') and expressed without any apparent detailed analysis, including reference to dictionary meanings. While the Court acknowledged that cheese is a different product from milk, its conclusion in that respect was that the manufacture of cheese was a 'rural industry', not that cheese is a 'primary product'.
Secondly, Goldrange relied on the decision of the Tribunal in Attwell and City of Albany [2009] WASAT 38 (Attwell), which involved applications for review of a direction and the refusal of development approval concerning Mr Attwell's activity of manufacturing blocks for retaining walls on his rural zoned property near Albany. The City of Albany identified a preliminary issue in both proceedings as to whether the use of the site for block manufacturing was capable of approval. This turned on whether the use was properly classified as 'industryrural', which means 'an industry handling, treating, processing or packing rural products'.
The Tribunal determined that the use was not classified as 'industryrural', and was not therefore capable of approval, because laterite and limestone are not 'rural products'. The Tribunal also decided that, even if these minerals were 'rural products', the use did not involve the processing of rural products, because it resulted in the manufacture of a new non-natural product, namely, blocks. In the course of its reasoning as to this second point, at [32], the Tribunal said:
A winery, a dairy producing butter, yoghurt or cheese, and a farm producing olive oil, would each be properly classified as 'industry rural' under TPS 3, because it is 'an industry … processing … rural products'. While they each involve the manufacturing of a new product from a rural product, namely wine from grapes, butter, yoghurt or cheese from milk, and olive oil from olives, the manufactured product is itself a rural product, and the manufacturing process therefore satisfies the definition of 'industryrural'.
However, that statement was concerned with the meaning of the expression 'an industry ... processing ... rural products', not 'primary products'. Furthermore, the Tribunal recognised that wine, butter, yoghurt, cheese and olive oil are each a 'new product'. Contrary to Goldrange's submission, in the context of the expression 'primary products' in issue in this matter, the same reasoning as expressed in Attwell does not apply. While wine-making involves the processing of primary products, as does a dairy producing butter, yoghurt or cheese, the product of winemaking or a dairy, namely, wine, butter, yoghurt or cheese, is not a primary product but, rather, a secondary product for reasons discussed earlier. The fact that wine, butter, yoghurt and cheese are 'rural products' is not in point in this case.
The third and final decision relied on by Goldrange is Australian Native Landscapes Pty Ltd v Warringah Shire Council [1989] NSWLEC 3 (Australian Native Landscapes). This case involved an appeal against the refusal of the respondent council to modify a development approval heard by the New South Wales Land and Environment Court. The development approval sought to be modified was granted in previous proceedings heard by Kearney J in the Supreme Court of New South Wales. In Australian Native Landscapes, the question before the Court was whether or not the proposed activities fell within the scope of 'rural industry' as defined in the Shire of Warringah Planning Scheme Ordinance. Bignold J quoted from the decision of Kearney J, at 4 of the earlier judgment, as follows:
Turning now to the terms of the Ordinance, "Rural industry" is defined as "Rural industry means handling, treatment, processing or packing primary products and includes servicing in a workshop plant or equipment used for rural purposes in the locality". It is apparent that the second limb of this definition is not applicable. It is submitted on behalf of the defendant that activities in relation to the products sold from the subject land fall within the terms of "handling, treating, processing, or packing primary products". There is no definition of "primary products" in the Ordinance, and there does not appear to be any relevant authority dealing with this expression in a manner which would be of assistance in the context of the present case. I have been referred to dictionary meanings of the word "primary" and the word "products", but I think that ultimately its meaning and connotation must be discovered from reading the words used in their grammatical and ordinary sense, paying regard to the context in which they appear in the Ordinance. It has been helpfully suggested by Mr. McClellan of counsel for the defendant that a useful definition would be in the following terms:
"Products composed of natural matter or matter developed by natural means."
I accept this suggested meaning of the expression as providing an apt and useful guide to the determination of these proceedings.
His Honour Bignold J subsequently noted, 'in the present proceedings I do not understand the parties to desire to canvass that ruling'. The 'apt and useful guide' adopted by his Honour Kearney J, based on a suggestion of Mr McClellan, is broadly consistent with the interpretation of the meaning of the words 'primary products' to which the Tribunal has come earlier in these reasons, based on the normal and common meaning of the words. However, having regard to the dictionary meanings to which I have referred and the reasoning expressed earlier, I would not substitute the 'apt and useful guide' adopted by Kearney J. In any case, this is not the interpretation that is contended for by Goldrange, as noted earlier.

Issue 2 - Which of the products in Goldrange's list of products are 'primary products'?

With one exception, in my view, in condition 3 of the development approval, the Council correctly identified the only products in the list dated 1 September 2010 that are 'primary products'. In making this finding, I accept Mr Bracone's evidence that perhaps the Council was too lenient in favour of Goldrange in relation to certain of the products listed in condition 3. However, the Council did not seek the deletion of any of those products, and I think it is proper in the circumstances to leave the condition as it is, with the exception of the addition of one matter, that is, frozen berries and vegetables, which are primary products involving minor processing to enable them to be brought to market and sold, namely, the freezing process. Simply freezing berries and vegetables does not create another product, in my view. The freezing is incidental to the primary industry and does not alter what is a primary product into something else.
All of the other items in Goldrange's list dated 1 September 2010 that are not included in condition 3 are secondary, not primary, products, even though many, if not all of them, result from the processing of primary products. In particular, cheese, cream, yoghurt, dips, pesto, pasta, chutneys, vinegar, dressings, salads (other than green undressed salads), crackers, olive oil, bottled or canned gourmet sauces, icecream, pies, condiments, spices and soups are all secondary products produced by the processing of primary products and other products to create a new product which is a secondary product.

The complexity of the production process of these secondary products no doubt varies. Goldrange called Mr Yi Lyang (David) Gan to give evidence specifically in relation to wine production. However, Mr Gan gave detailed evidence from his experience in relation to cheese production as well. There can be no doubt, based on his evidence and on the common understanding of cheese production between the parties during argument, that cheese is not a primary product in terms of the definition referred to earlier, but rather, is a secondary product manufactured in a complex secondary industry, although using primary products as well as secondary products as ingredients.
The same is true of each of the other items on Goldrange's list. In this regard, I accept broadly the evidence given by Mr Bracone who carefully considered each of the items and, subject to perhaps erring on the side of Goldrange in relation to some of those items, in effect, applied the correct definition of 'primary products' referred to earlier. I do not need to set out the whole of Mr Bracone's analysis of each of the products which he dealt with in turn. I agree with the following summary in broad terms given by Mr Bracone:
In coming to its determination the City attempted to keep in mind the principle that a 'primary product' is, essentially, an unprocessed product, while at the same time acknowledging a limited amount of processing would necessarily be needed to get the product to market. Also, to give the benefit of the doubt to the Applicant, some allowances were made where processing still left the raw product recognizable.
Although using different wording, Mr Bracone's analysis broadly reflects the proper interpretation of the term 'primary products'.
In relation to condition 3, Goldrange made an additional submission, that is, even if the Tribunal were to not amend the list of items included within the condition, it should nevertheless relieve Goldrange from the obligation to seek development approval for an expansion of the products sold from the delicatessen, provided that the products satisfied the meaning of the expression 'primary products'.
Goldrange's concern was that it would need to obtain development approval in relation to an expansion of the products sold from the site and this may introduce complications. In my view, it is reasonable to limit the range of primary products that can be sold from the gourmet delicatessen because without development approval there cannot be the carrying out of the use of a 'growers mart' or any aspect of it, and there may well be planning issues associated with other products falling within the definition of 'primary products' that should be the subject of assessment.
It is particularly appropriate, in my view, to limit the consent in this way, given the detailed limitation on land use in LSP 47 that I have referred to. Furthermore, having regard to the clarification in relation to the meaning of the term 'primary products' in these reasons, it should be fairly clear as to what products are able to be sold from the premises, at least unless LSP 47 is amended to expand the range of permissible uses.

Issue 3 - Is condition 4 of the development approval an appropriate condition?

I find that condition 4 is a reasonable and appropriate condition in the circumstances of this case. It is intended, as Mr Bracone said, 'to ensure that products remain primary products and are not converted into secondary products'. It is particularly appropriate in the context of a very detailed land use regime in cl 7.2.1 of LSP 47.

Issue 4 - Is wine a primary product or otherwise permissible?

Wine is not, in my view, a primary product, but rather, is a secondary product. Mr Gan gave detailed evidence about the process involved in the production of wine. He said in particular that wine production involves 'harvesting, crushing, pressing, maceration, temperature adjustment, tannins addition, sulphur addition, and further personal preferences … '.
Mr Gan explained that the character of wine comes primarily from the grapes and that the grapes are the most important part of the process. However, it is clear from Mr Gan's evidence that wine production involves the creation of a new product. The new product is not a primary product; rather, it is a secondary product and therefore wine does not fall within the definition of 'growers mart' as it is not a 'primary product'.
In this regard, I accept Mr Bracone's evidence based in part on his own experience as an amateur winemaker that 'the extent of processing involved in producing wine must mean that wine is not a primary product'. It follows that the sale of wine from Drovers Place is not contemplated within the definition of 'growers mart' and is therefore not permissible under that land use category. Although the issue, as identified by the parties, raised the question of whether the sale of wine is otherwise permissible, no argument was presented as to any other basis for permissibility.

Issue 5 - Is the proposed sale of cooked fish and chips permissible?

Cooked fish and chips are, in my view, not primary products, but rather, secondary products. Although the primary ingredient in chips is potato which is a primary product, the primary product is processed by cutting the potato and cooking it in oil. The result of this process is the creation of a new product which is a secondary product, namely, the chips. Equally, cooked fish is not a naturally occurring product, but rather, is a secondary product that results from the processing by means of cooking of a primary product, namely, the uncooked fish, together with other ingredients. The proposed sale of cooked fish and chips is therefore not contemplated by the definition of 'growers mart', as cooked fish and chips are not 'primary products'.
In relation to Goldrange's alternative contention that the sale of cooked fish and chips at the fishmongers is an incidental use, it is arguable that this issue does not properly arise in a proceeding for the review of the refusal of a development application for development approval under DPS 2 and LSP 47 for the sale of cooked fish and chips at the fish shop. The only potentially relevant permissible land use applicable to the fish shop in relation to the sale of cooked fish and chips is 'growers mart'. Any land use not listed in cl 7.2.1 of LSP 47 cannot be the subject of development approval at the site. Even if the sale of cooked fish and chips were 'incidental' to the fish shop use, the development application could not be approved, as the proposed use does not fall within the 'growers mart' land use or any other land use capable of approval under LSP 47. In contrast, the issue could potentially arise if the use were to commence and the City were to issue a direction for its cessation.
However, the Tribunal would, if it were possible, express a view in relation to this issue because, clearly, the fish shop owner wishes to sell cooked fish and chips, and it appears the application for development approval was only lodged in order to seek some clarification. The question of whether a use is incidental or ancillary to another use is a question of fact and degree in the circumstances of each case. The information available on the evidence is very general in relation to the use. It is not sufficient in relation to important details, namely, how the use would operate, what specific areas would be used and how much revenue the sale of cooked fish and chips would be likely to generate, both in absolute terms and as a proportion of overall revenue.
I note that in the joint statement of the town planning experts, Mr Turner did express the view:
… The fish and chip cooking area and turnover would be a small part of the fishmonger[']s business and is therefore an incidental an ancillary use …
However, I am unable to make any meaningful finding in relation to incidental or ancillary use based on such a generalised statement. Direct information would be necessary from the fish shop owner. I encourage, however, the fish shop owner to provide such information to the City to enable the City, with the benefit of its legal representatives, to indicate what extent of sale of cooked fish and chips may be an incidental use.

Conclusion

It follows that the application for review in relation to DR 385 of 2010 should be allowed in part only and condition 3 amended to add 'frozen berries and vegetables', and that the application for review in DR 386 of 2010 and DR 33 of 2011 should be dismissed.

Orders

The Tribunal makes the following orders.

DR 385 of 2010:

1.The application for review is allowed in part.
2.The decision made by the respondent on 28 October 2010 to grant conditional development approval for the use of Unit 7, No 1397 (Lot 810) Wanneroo Road, Wanneroo as a 'gourmet delicatessen' is varied by amending condition 3 by deleting the word 'and' after paragraph (i), substituting '; and' for the full stop after paragraph (j) and inserting the following after paragraph (j):
'(k) frozen berries and frozen vegetables.'

DR 386 of 2010:

1.The application for review is dismissed.
2.The decision made by the respondent on 26 October 2010 to refuse development approval for the use of part of Unit 6, No 1397 (Lot 810) Wanneroo Road, Wanneroo for 'wine sales' is affirmed.

DR 33 of 2011:

1.The application for review is dismissed.
2.The decision made by the respondent on 11 January 2011 to refuse development approval for the use of part of the fish shop, No 1397 (Lot 810) Wanneroo Road, Wanneroo for 'the sale of cooked fish and chips' is affirmed.

I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER