KIEU and SHIRE OF SERPENTINEJARRAHDALE
[2016] WASAT 84
•7 JULY 2016
KIEU and SHIRE OF SERPENTINEJARRAHDALE [2016] WASAT 84
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 84 | |
| 18/07/2016 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:95/2016 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS L EDDY (MEMBER) | 7/07/16 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Current proposed development not capable of being permitted under respondent's town planning scheme | ||
| B | |||
| PDF Version |
| Parties: | TAN KIEU SHIRE OF SERPENTINEJARRAHDALE |
Catchwords: | Town planning Development application Preliminary issue Groundwater Protection Zone Land use classification Whether development best fits within use class 'Hydroponics' or 'Floriculture (Extensive)' Amended proposal |
Legislation: | Planning and Development Act 2005 (WA), s 251(1) Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 3.2.4, cl 5.19.2 State Administrative Tribunal Act 2004 (WA), s 31, s 60(2) |
Case References: | APN Outdoor and City of Cockburn [2014] WASAT 32 Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SLR (WA) 125 Chiefari v Brisbane City Council [2005] QPELR 500 Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431 Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 Yunovich and Town of Port Hedland [2016] WASAT 19 |
Summary | The applicant sought planning approval to use No 121 (Lot 14) King Road, Oakford for the growing of Lebanese cucumbers. The applicant submitted this was 'Floriculture (Extensive)' which is a permissible use within the Groundwater Protection Zone of the Shire of SerpentineJarrahdale Town Planning Scheme No 2. The Shire refused to grant planning approval on the basis that it considered the proposed use to be a form of hydroponics which is a prohibited use in the Groundwater Protection Zone. The Tribunal ordered that a preliminary issue would be determined on the documents, being: what is the land use category within which the applicant's development proposal best fits and, as a result of this, is the proposal capable of approval under the respondent's town planning scheme?,The Tribunal found that the proposed development involved the use of a hydroponic system to produce the cucumbers, and therefore the land use 'Hydroponics' was the 'best fit' use classification. This was because the Tribunal found that the development proposal did not involve the use of soil, and that the cultivation of the plants using sawdust as a medium and providing nutrients through the water exclusively must involve the use of a hydroponic system within the ordinary meaning of that term. As such, it was not capable of being permitted within the Groundwater Protection Zone and was therefore not capable of being permitted under the Scheme. ,The Tribunal went on to comment that, if the proposed development involved the growing of the cucumbers in soil, then, so long as the use of the soil was real and not illusory, it would not involve the use of a hydroponic system within the normal meaning of that term. Having regard to the details of the proposed development, the Tribunal considered that such an amended proposal would best fit within 'Floriculture (Extensive)' and therefore would be capable of approval under the Scheme. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KIEU and SHIRE OF SERPENTINEJARRAHDALE [2016] WASAT 84 MEMBER : MS L EDDY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 7 JULY 2016 PUBLISHED : 18 JULY 2016 FILE NO/S : DR 95 of 2016 BETWEEN : TAN KIEU
- Applicant
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent
Catchwords:
Town planning - Development application - Preliminary issue - Groundwater Protection Zone - Land use classification - Whether development best fits within use class 'Hydroponics' or 'Floriculture (Extensive)' - Amended proposal
Legislation:
Planning and Development Act 2005 (WA), s 251(1)
Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 3.2.4, cl 5.19.2
State Administrative Tribunal Act 2004 (WA), s 31, s 60(2)
Result:
Current proposed development not capable of being permitted under respondent's town planning scheme
Summary of Tribunal's decision:
The applicant sought planning approval to use No 121 (Lot 14) King Road, Oakford for the growing of Lebanese cucumbers. The applicant submitted this was 'Floriculture (Extensive)' which is a permissible use within the Groundwater Protection Zone of the Shire of SerpentineJarrahdale Town Planning Scheme No 2. The Shire refused to grant planning approval on the basis that it considered the proposed use to be a form of hydroponics which is a prohibited use in the Groundwater Protection Zone. The Tribunal ordered that a preliminary issue would be determined on the documents, being: what is the land use category within which the applicant's development proposal best fits and, as a result of this, is the proposal capable of approval under the respondent's town planning scheme?
The Tribunal found that the proposed development involved the use of a hydroponic system to produce the cucumbers, and therefore the land use 'Hydroponics' was the 'best fit' use classification. This was because the Tribunal found that the development proposal did not involve the use of soil, and that the cultivation of the plants using sawdust as a medium and providing nutrients through the water exclusively must involve the use of a hydroponic system within the ordinary meaning of that term. As such, it was not capable of being permitted within the Groundwater Protection Zone and was therefore not capable of being permitted under the Scheme.
The Tribunal went on to comment that, if the proposed development involved the growing of the cucumbers in soil, then, so long as the use of the soil was real and not illusory, it would not involve the use of a hydroponic system within the normal meaning of that term. Having regard to the details of the proposed development, the Tribunal considered that such an amended proposal would best fit within 'Floriculture (Extensive)' and therefore would be capable of approval under the Scheme.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : Bioscience Pty Ltd
Respondent : Shire of Serpentine-Jarrahdale
Case(s) referred to in decision(s):
APN Outdoor and City of Cockburn [2014] WASAT 32
Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SLR (WA) 125
Chiefari v Brisbane City Council [2005] QPELR 500
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
Yunovich and Town of Port Hedland [2016] WASAT 19
Introduction
1 This matter was determined on the documents and the Tribunal provided oral reasons for decision on 7 July 2016. What follows is a formally revised and edited version of those reasons delivered orally on 7 July 2016.
Background
2 This is an application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Shire of Serpentine-Jarrahdale (respondent or Shire) to refuse an application for planning approval by Mr Kieu (applicant) in relation to No 121 (Lot 14) King Road, Oakford (site).
3 The applicant seeks permission to use the site for what is described in the application as 'floriculture extensive'. The Shire refused to grant planning approval on the basis that it considered the proposed use to be a form of hydroponics and such a use is a prohibited use in the zone where the site is located.
4 The site is located in the Groundwater Protection Zone under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme). In that zone, only the land uses listed in cl 5.19.2 of the Scheme are permissible and all other uses are prohibited. 'Floriculture (Extensive)' is a use that is permissible in the Groundwater Protection Zone.
5 Given the limitation on land uses within the Groundwater Protection Zone, the Tribunal ordered that a preliminary issue would be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) of the following question:
What is the land use category within which the applicant's development proposal best fits and, as a result of this, is the proposal capable of approval under the respondent's town planning scheme?
6 The following documents were submitted in relation to the preliminary issue before the Tribunal:
a) application to the Tribunal with attached documents lodged on 4 April 2016;
b) agreed statement of facts and bundle of documents dated 17 May 2016 (including the original application in relation to the proposed development accompanied by a Nutrient Management Plan which details the proposed development);
c) applicant's supplementary bundle of documents dated 30 May 2016;
d) applicant's outline of submissions dated 30 May 2016;
e) respondent's submission dated 27 May 2016;
f) applicant's response to respondent's submission dated 6 June 2016; and
g) respondent's response to applicant's written submission dated 7 June 2016.
Proposed development
7 It is agreed between the parties that the applicant's proposed use of the site involves the production of Lebanese cucumbers in greenhouses using a closed loop fertigation system which does not discharge any nutrient into the environment (proposed development).
Amended development proposal
8 In the applicant's supplementary bundle of documents, there is a statement that the applicant has agreed, in order to facilitate obtaining development approval, he will grow his cucumbers in soil. It is explained that the system used will still have the same design principles as per the current application; that is, of using a closed system that captures and recirculates all irrigation water as drainage for reuse and preventing nutrients from entering the environment. It is asserted that by doing this, the applicant will not be using hydroponics or a hydroponic system. It is asserted that the applicant is prepared to accept a condition on development approval that requires the growing medium used to conform to 'Australian Standard 4419 - Soils for landscaping and garden use'.
9 In making these statements, it seems that the applicant wishes the Tribunal to consider, for the purposes of determining the preliminary issue, an amended development proposal. The applicant did not seek leave to rely on an amended proposal at any of the directions hearings leading to the making of the orders relating to determination of the preliminary issue. There is also no indication as to whether or not the respondent would have consented to any such leave application. Accordingly, I cannot, as a matter of procedural fairness, determine the preliminary issue on the basis of the amended development proposal. I must determine the preliminary issue on the basis of the development proposal that was the subject of the application to the Tribunal. However, in order to assist the applicant going forward, I will make comment, to the extent that I am able, on whether the statements made in relation to the amended proposal make or are likely to make any difference to the determination of the preliminary issue.
Respondent's submissions
10 The respondent submits that the proposed development does not come within the land use category of 'Floriculture (Extensive)' for two reasons. Firstly, the proposed development better fits within the land use category 'Hydroponics' as defined in TPS 2 or alternatively, the land use category 'Rural Use' than 'Floriculture (Extensive)'. Secondly, the respondent submits that the proposed development does not meet the definition of 'Floriculture (Extensive)' because it involves the production of a fruit and not the production of 'vegetables, flowers or exotic and native plants'. In addition, it argues that the reference to 'Extensive' in that land use category requires use of a large area of land with a minimum of labour and capital rather than the intensive use of a small area of land.
Applicant's submissions
11 The applicant submits that his proposed development best fits the land use category 'Floriculture (Extensive)'. In response to the respondent's argument, the applicant submits that his proposal does not involve the production of a fruit. He says that cucumber is commonly understood to be a vegetable and not a fruit. In addition, the Lebanese cucumber does not, unlike other types of cucumber, meet the technical definition of a fruit. The applicant's written submission asserts that the Lebanese cucumber is a flowering plant and his proposal involves the cucumbers being grown under glass, which is consistent with the ordinary meaning of 'floriculture' as defined in the Macquarie Dictionary – that is, 'the cultivation of flowers or flowering plants, especially under glass'. It is not clear from the agreed facts or any of the material lodged with the Tribunal to date that the cucumbers are to be cultivated under glass. The Nutrient Management Plan accompanying the application of the respondent indicates that the cucumbers are to be grown within tunnel houses, but there is no indication as to what these are to be made of. The Tribunal is aware that, as a general concept, tunnel houses may be made of a range of materials. However, I am not sure that anything turns on this.
12 The applicant further submits that his proposed development does not involve hydroponics. The definition in TPS 2 involves the use of hydroponic systems and, he submits, this involves the cultivation of plants by placing the roots in liquid nutrient solutions rather than in soil, or the soil-less growth of plants (relying on the Macquarie Dictionary definition of 'hydroponics'). In his submissions the applicant relies on his amended proposal in submitting that, because he will be growing the cucumbers in soil, it is necessarily not hydroponics. As indicated above, the Tribunal cannot determine the issue on that basis. However, it is the case that the development proposal involves the growth of the cucumbers in a medium (sawdust) and not in water per se. The Nutrient Management Plan indicates that the closed fertigation system is to be used to deliver water and nutrient to the plants through t-tape laid across the top of the sawdust. The sawdust lies enclosed within a plastic membrane over a styrofoam gully which ends in a PVC drainage channel. This results in a closed system which allows a percentage of the water and nutrient to be re-used and does not allow the nutrients to escape into the environment.
Consideration of the preliminary issue
13 The characterisation of the proposed development in terms of the land use classification in the original application, or by the respondent in making its decision, is not determinative of the question of its correct characterisation: Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SLR (WA) 125; Yunovich and Town of Port Hedland [2016] WASAT 19.
14 As stated by his Honour Steytler J in the decision of Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431, at [53]:
[E]ach proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out in either a mechanical or in an arbitrary way.
15 In relation to understanding the correct meaning of terms or phrases within a town planning scheme, the ordinary principles of statutory interpretation apply. Having said this, the Tribunal has adopted the approach described by Wilson DCJ, in Chiefari v Brisbane City Council [2005] QPELR 500, at [9]:
These definitions are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. … They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and common sense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
16 The Tribunal found in Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 at [40] that '[t]he latitude and flexibility that has been suggested with respect to the interpretation of planning instruments should not extend to, in effect, "rewriting" [the Scheme]'.
17 In circumstances where a proposal appears to fall within the general terms of more than one use class, the Tribunal has adopted the 'best fit' approach: APN Outdoor and City of Cockburn [2014] WASAT 32 at [19] and [24].
18 In this case, there are four land use categories within which it might be argued that the applicant's proposed development could fit. These are 'Floriculture (Extensive)', 'Hydroponics', 'Rural Use' and 'Horticultural Pursuit'.
19 'Floriculture (Extensive)' and 'Hydroponics' are included in Table 1 – Zoning Table, as is 'Rural Use'. 'Horticultural Pursuit' is not included in that table. Clause 3.2.4 of TPS 2 provides that:
Where in the Zoning Table a particular use is mentioned it is deemed to be excluded from any other use class which by its more general terms might otherwise include such particular use.
20 'Horticultural Pursuit' is not a use mentioned in the Zoning Table, and it is therefore not immediately clear whether, if what the applicant proposes could fall within this land use category, this would, pursuant to cl 3.2.4 of TPS 2, affect whether it fits by more general terms into another land use category. However, given the conclusions reached below, it is not necessary for the Tribunal to determine whether cl 3.2.4 of TPS 2 should be understood as extending in application to 'Horticultural Pursuit'.
21 The Tribunal pauses to note here that, although the parties made submissions concerning whether the Lebanese cucumber is technically a fruit or a vegetable, the Tribunal is not satisfied the term 'vegetable' as used in the Scheme is not intended to refer, and should not be understood as referring, to the scientific or technical category of a 'plant'. In light of the fact that schemes are drafted by town planners, and not parliamentary counsel, or indeed scientists, I am satisfied that the ordinary and common understanding of the term 'vegetable' was intended. Cucumbers, tomatoes, and a number of other plants may be technically a fruit in scientific terms, but there is no doubt that these things are understood, in terms of everyday language, to be vegetables. Therefore, the respondent's submission that the proposed development is not 'Floriculture (Extensive)' because it involves the growing of a fruit is not accepted.
22 In considering each of the four potential use classes that may apply, it is necessary to focus on the definitions of those use classes in TPS 2.
23 'Rural Use' is defined to mean use of land (and the use of associated buildings) for the growing of vegetables, fruit, cereals, or food crops except for domestic purposes, the rearing or agistment of goats, sheep, cattle or beasts of burden, the stabling or agistment or training of horses or other ungulates, the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens, and the sale of produce grown solely on the lot.
24 'Horticultural Pursuit' relevantly means use of land (and the use of associated buildings) for the growing of vegetables, cereals or food crops, the growing of vines, trees, plants, shrubs or flowers for replanting, and the sale of produce grown solely on the lot or on any adjoining or nearby lot forming part of the same landholding.
25 Each of these land uses relevantly relates to the growing of vegetables.
26 'Hydroponics' is defined in TPS 2 to mean 'the production of vegetables, flowers, exotic and native plants, fruit and nuts using hydroponic systems for the delivery of water and nutrients to the plants'.
27 'Floriculture (Extensive)' is defined to mean 'the production of vegetables, flowers, exotic and native plants'.
28 Each of these uses (and it is noted, also the land use category 'Viticulture') involves the concept of the production of vegetables.
29 If the proposed development involves the use of a hydroponic system to produce the cucumbers, this land use would be the most specific as well as being the best fit. The Macquarie Dictionary Online defines hydroponics as 'the cultivation of plants by placing the roots in liquid nutrient solutions rather than in soil; soil-less growth of plants'. The Oxford English DictionaryOnline defines it as 'The process of growing plants in sand, gravel, or liquid, with added nutrients but without soil'.
30 The Tribunal accepts the applicant's submission that, if the proposed development involved the growing of the cucumbers in soil (that soil being enclosed within a plastic membrane and within a styrofoam gully and with t-tape delivering water and nutrients that is recirculated) so as to be a closed system, then, so long as the use of the soil was real and not illusory, it would not involve the use of a hydroponic system within the normal meaning of that term. Such a proposal would not be use of land for 'Hydroponics'.
31 However, the current development proposal does not involve the use of soil. It is the Tribunal's view that the cultivation of the plants using sawdust as a medium and providing nutrients through the water exclusively must involve the use of a hydroponic system within the ordinary meaning of that term.
Comments regarding an amended proposal
32 This finding technically renders it unnecessary to consider the other land use categories. However, given that the applicant has suggested that he could, and would be willing to, alter his proposal to effectively take it out of the 'Hydroponics' use class, the Tribunal considers that it is appropriate, as it indicated earlier, to go on to make some comments about what land use category an amended proposal that replaces the medium of sawdust with soil would best fit within.
33 For convenience, the Tribunal will consider only 'Floriculture (Extensive)' and 'Rural Use' because 'Rural Use' and 'Horticultural Pursuit' are, relevant to this proposal, substantially similar, and both are uses which are prohibited in the relevant zone.
34 The respondent submits that 'Floriculture (Extensive)' should be understood as referring to obtaining a relatively small crop from a large area with minimal capital and labour. However, there is no evidence to support this submission. The Model Scheme text does contain land use terms that incorporate the concepts of 'extensive' versus 'intensive' - that is, 'agriculture - extensive' and 'agriculture - intensive' - and it is perhaps with this in mind that the respondent's submission is made. However, these terms are defined in the Model Scheme text in a very different way to the way that 'Floriculture (Extensive)' is defined in TPS 2. 'Agriculture - extensive' is defined to mean 'premises used for the raising of stock or crops including outbuildings and earthworks, but does not include agriculture intensive or animal husbandry - intensive'. 'Agriculture - intensive' is defined to mean: 'premises used for commercial production purposes, including outbuildings and earthworks, associated with any of the following - the production of grapes, vegetables, flowers, exotic or native plants or fruit or nuts; the establishment and operation of plant or fruit nurseries; the development of land for irrigated fodder production or irrigated pasture (including turf farms); and aquaculture'. If anything, the definition of 'Floriculture (Extensive)' is, despite the use of the word 'extensive' in the term defined, closest to the Model Scheme term 'agriculture - intensive'.
35 The fact that the word 'Extensive' in brackets is part of the defined term does not mean that one can assume there is more to the definition of the land use category than is actually contained in the definition. There is no basis to infer into the definition additional words that are not actually used. It is not permissible to rewrite the Scheme in this way.
36 Here, the definition does not put any meaning on the reference to 'Extensive' except for, it seems to me, the reference to production of vegetables, etc, rather than the reference to growing vegetables, etc in 'Rural Use'. The Scheme displays a clear distinction between these two concepts.
37 The ordinary meaning of 'growing' a plant is defined in the following online dictionaries as:
to increase by natural development, as any living organism or part by assimilation of nutriment; increase in size or substance; to cause to grow: to grow a hedge; to cultivate as a crop
(Macquarie Dictionary Online)
(Of a living thing) undergo natural development by increasing in size and changing physically; (Of a plant) germinate and develop
(Oxford English Dictionary Online).
38 'Production' is a word of potential multiple meanings. In this context, and particularly when contrasted with 'growing', it seems to the Tribunal that it must convey a degree of interference, rather than simply allowing a plant to naturally grow. It might involve a level of technicality or artificiality, or perhaps the application of processes - either in relation to the plant growth or to the end product.
39 It is the view of the Tribunal that a development proposal that is similar to the current development proposal, but with the replacement of the sawdust with soil, would involve production of vegetables rather than simply growing vegetables. There is a significant level of artificiality and/or interference involved in obtaining the outcome of the ripe vegetable. The vegetables are grown in tunnel houses; they are irrigated and provided with nutrients in a highly controlled and artificial manner; the system is a closed system. Such a proposal would, in the Tribunal's view, best fit within the land use category 'Floriculture (Extensive)'.
Conclusion
40 Having found those matters, the Tribunal concludes that the determination of the preliminary issue is that the applicant's proposed development (that is, the proposal that was refused by the respondent and that is the subject of the application before the Tribunal) involves use of the land for 'Hydroponics'. As such, it is not capable of being permitted within the Groundwater Protection Zone.
41 However, as the applicant had indicated a desire to amend his application, the Tribunal will hear from the parties as to whether it should make orders allowing the applicant to give to the respondent an amended application and inviting the respondent to reconsider that amended application pursuant to s 31 of the SAT Act.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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