MY FOODIE BOX LIMITED and CITY OF BAYSWATER - [2023] WASAT 4

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   MY FOODIE BOX LIMITED and CITY OF BAYSWATER [2023] WASAT 4
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   13 SEPTEMBER 2022
DELIVERED          :   7 FEBRUARY 2023
FILE NO/S:   DR 73 of 2022
BETWEEN:   MY FOODIE BOX LIMITED
Applicant
AND
CITY OF BAYSWATER
Respondent

Catchwords:

Town planning - Enforcement - Written direction - Whether development unauthorised - Statutory construction - Industry land use - Use does not require approval

Legislation:

City of Bayswater Local Planning Scheme No 24, cl 1.3, cl 1.6, cl 1.6(a), cl 1.6(b), cl 1.10, cl 1.10.1, Pt 3, Pt 7, cl 7.1.1, cl 7.2, cl 7.2.3, cl 7.2.4, cl 8.6, cl 8.6.2
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA)
Interpretation Act 1984 (WA), s 9, s 18
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, Pt 7, cl 60, cl 61, cl 61(2)(b)
Planning and Development Act 2005 (WA), s 73(1)(a), s 214, s 255, s 257B

Result:

Preliminary issue determined

Category: B

Representation:

Counsel:

Applicant	:	CPK Russell
Respondent	:	P Gillett

Solicitors:

Applicant	:	Pragma Lawyers
Respondent	:	McLeods

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

ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Banfield & Ors and Frank and Niki Beverwijk Pty Ltd [2012] WASAT 240
Harvis Capital Pty Ltd v Mid-West/Wheatbelt Joint Development Assessment Panel [2020] WASC 205
Moles and City of Armadale [2021] WASAT 140

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In this proceeding, the City of Bayswater (City or Respondent) has issued a written direction, dated 31 March 2022 (Direction), pursuant to s 214 of the Planning and Development Act 2005 (WA) (PD Act).
The City considers that My Foodie Box Limited (Applicant) is undertaking unauthorised development at its premises at 9 Foundry Street, Maylands (Land).
More precisely, the Direction alleges that the Applicant is undertaking the land use of 'repackaging of food items for sale and distribution' on the Land and that such use (being an innominate or unlisted use) requires, but does not have, approval under the City of Bayswater Local Planning Scheme No 24 (LPS 24). The Land is zoned 'General Industry' in LPS 24.
The Applicant seeks review of the City's decision to issue the Direction pursuant to s 255 of the PD Act. The Applicant says that the land use being carried out on the Land is an 'Industry' for the purposes of LPS 24 (either as 'General Industry' or 'Light Industry' which are both permitted ('P') uses in the General Industry zone).
These reasons deal with a preliminary issue as to the classification of the land use being conducted on the Land.
The parties agree that if the land use being conducted on the Land is a General Industry or Light Industry for the purposes of LPS 24, then there was no lawful basis for the Direction to be issued.
The preliminary issue is framed in the following terms:
Does the use being carried out by the Applicant on the Land require development approval under LPS 24?
For the reasons that follow, the land use being conducted on the Land falls within the terms of the 'Industry' land use as that term is defined in LPS 24. As a result, development approval under LPS 24 is not required and, therefore, there was no basis on which the Direction should have been issued.
The answer to the preliminary issue is therefore 'no'.

Agreed facts

The parties agreed the following facts (Agreed Facts). Accordingly, I find as follows.
The Land is formally described as Lot 74 on Diagram 62164 in Certificate of Title Volume 1612 Folio 970. The Land contains a warehouse (Premises).
The Land is located within the City's municipal area.
The Applicant was incorporated on 2 October 2017 and became an ASXlisted company in January 2022.
In January 2018, the Applicant commenced operating the business known as 'My Foodie Box' (Business) but did not commence any commercial trading until January 2019. In its first year, the Business developed systems, supply chains and the first version of its ecommerce platform.
The Business has a website ' which is hosted from a server located in Sydney.
The Premises include the following:
(a)purpose built cool rooms for the proper storage of fresh produce;
(b)a commercial kitchen used to develop new recipes and to enable photographs of the meals to be taken for publishing on the website and on recipe cards;
(c)shelves to store containers and packaging materials along with pre-proportioned dry goods such as rice, legumes and pasta etc; and
(d)rows of pallet racks and shelves which are used to store packaging materials such as boxes, crates, packaging containers and dry goods. Pallet materials are moved around the Premises using pallet jacks and forklifts.
In January 2021, the Applicant commenced operating from the Premises.
As at the date of the Direction, and continuing to this day, the Business operates as follows:
(a)customers log on to the website to order and pay for meal kits in advance. Their orders are received before a cut-off time of midnight on Tuesday of each week. The orders are then processed on Wednesday morning for delivery on Saturday, Sunday or Monday morning;
(b)meal kits are boxes that contain a step-by-step recipe card together with the uncooked pre-portioned ingredients required for the recipe;
(c)the Applicant purchases, and has delivered to the Premises, the uncooked ingredients required for the recipes. These are delivered to the Premises during business hours Monday to Friday;
(d)the Applicant stores the uncooked ingredients at the Premises until used in the assembly of a meal kit box;
(e)the meal kit boxes are assembled by employees and agents of the Business within the Premises;
(f)the assembling process involves the Business's staff and contractors portioning, packaging and/or packing the raw ingredients (raw meat/fish, grains, vegetables and sauces, all of which is not yet cooked) into meal kits based on the orders placed. Raw ingredients such as meat and fish are proportioned and packed by suppliers and kept chilled until packing into the meal kit box;
(g)no cooked meals are provided direct to customers;
(h)the meal kits are manually loaded into the Applicant's delivery vans which reverse into the Premises through large roller doors. Meal kit boxes are loaded within the Premises; and
(i)the Applicant's delivery vans make deliveries between 7.00 am to 8.00 pm each Saturday and Sunday and between midnight and 7.00 am each Monday.
On average, there are:
(a)two to three delivery trucks each weekday (Monday to Friday) attending the Premises during ordinary business hours to deliver the fresh produce and packaging; and
(b)seven to eight vans on each delivery day to collect the meal kit boxes from the Premises for delivery to customers.
For an initial period, customers had the option to collect the meal kits from the Premises to avoid paying a $9.95 delivery fee. However:
(a)on 17 January 2022, the City contacted the Applicant requiring the Business to cease having customers collecting online purchases of meal kits from the Premises; and
(b)on 31 January 2022, all customers ceased to collect meal kit boxes from the Premises and thereafter all customers receive their orders by delivery.
The Direction was issued by the City on 31 March 2022. It requires the Business to cease operating from the Premises within 28 days. The Applicant lodged the application for review on or around 28 April 2022.

The applicable statutory framework

As stated, the Land is zoned 'General Industry' in LPS 24. The Land is zoned 'Urban' in the Metropolitan Region Scheme.
LPS 24 was gazetted on 26 November 2004. Perforce of cl 1.3, LPS 24 applies to the municipal district as generally shown by the Scheme Area boundary on the scheme maps.
Clause 1.10 of LPS 24, set out below, relates to interpretation.
1.10.1 Words and expressions used in the Scheme shall have the respective meanings given to them in Appendix 1 or elsewhere in the Scheme and the Residential Design Codes.
1.10.2 Where a word or term is defined in the Residential Design Codes then notwithstanding anything else in the Scheme that word or term when used in respect of residential development has the meaning given to it in the Residential Design Codes.
1.10.3 Words and expressions used in the Scheme but not defined in Appendix 1, elsewhere in the Scheme or in the Residential Design Codes shall have their normal and common meanings.
It will be immediately apparent that, unlike many other local planning schemes, LPS 24 does not include in the chapeau of cl 1.10.1 any words to the effect that 'unless the context otherwise requires …'.
Part 3 of LPS 24 relates to Use and Development of Land. However, Pt 7 of the deemed provisions (being the provisions contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) includes provisions directed to the question as to when development approval under a local planning scheme is required. By reason of s 257B of the PD Act, a deemed provision prevails over any inconsistent provisions contained within LPS 24.
Therefore, for the purposes of addressing the question of in what instances development approval is required, cl 60 of the deemed provisions provides that a person must not commence or carry out any works on, or use, land in the Scheme area unless:
(a)the person has obtained the development approval of the local government under Part 8 [of the deemed provisions]; or
(b)development approval is not required for the development under clause 61.
Clause 61 of the deemed provisions sets out a range of circumstances where development approval under a local planning scheme is not required for both 'works' and 'uses'.
Of particular relevance is cl 61(2)(b), which provides that development approval is not required for development that is a class P use in relation to the zone in which the development is located, if, relevantly, the development has no works component.
Part 7 of LPS 24 deals with Zones. Clause 7.1.1 creates a number of zones including, relevantly, the General Industry zone. Clause 7.2 relates to the Zoning Table. Clause 7.2.3 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 term might otherwise include such particular use.
Clause 7.2.4 of LPS 24 provides as follows:
If the use of the land for a particular purpose is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the use classes the Council may:
a)determine by Absolute Majority that the use is consistent with the objectives and purpose of the particular zone and is therefore permitted;
b)determine by Absolute Majority that the proposed use may be consistent with the objectives and purpose of the zone and thereafter follow procedures of clause 3.3 in considering an application for planning approval; or
c)determine that the use is not consistent with the objectives and purpose of the particular zone and is therefore not permitted.
Table No 1 comprises the Zoning Table. It provides that the use classes 'General Industry' and 'Light Industry' are P uses within the General Industry zone.
Clause 8.6 of LPS 24 deals with development in industrial zones and includes a provision dealing with sale of goods. It is in the following terms:
8.6.2Sale of Goods
In the General Industry and Light Industry Zones, a person may offer goods for sale by wholesale, but may only offer goods for retail sale providing:
a)the goods or produce are manufactured, processed or repaired on the lot;
b)not more than 50% of the total area of the occupancy is used for the display and sale of the goods or produce and the remaining space is used for related purposes of an industrial nature; and
c)the goods or produce sold are not foodstuffs, liquor or beverages, items of clothing or personal adornment, magazines, newspapers, books or paper products, medicinal or pharmaceutical products, china, glassware, small electrical goods of a domestic nature, toys and generally items of a cash and carry nature related to daily household and recreational needs and consumption unless those goods are manufactured on site.
Within Appendix 1, the following defined terms arise for consideration:

Fast Foods Outlet:

means premises, including premises with a facility for drive-through service, used for the preparation, sale and serving of food to customers in a form ready to be eaten –

(a) without further preparation; and

(b) primarily off the premises.

Industry:

means the carrying out of any process in the course of trade or business for gain, for and incidental to one or more of the following:

(a) the winning, processing or treatment of minerals;

(b) the making, altering, repairing, or ornamentation, painting, finishing, cleaning, packing or canning or adapting for sale, or the breaking up or demolition of any article or part of an article;

(c) the generation of electricity or the production of gas;

(d) the manufacture of edible goods;

and includes, when carried out on land upon which the process is carried out and in connection with that process, the storage of goods, any work of administration or accounting, or the wholesaling of, or the incidental sale of goods resulting from the process, and the use of land for the amenity of persons engaged in the process; but does not include;

(a) the carrying out of agriculture;

(b) on-site work on buildings or land; and

(c) in the case of edible goods the preparation of food for retail sale from the premises.

Industry - General:

means an industry other than a cottage, extractive, hazardous, light, noxious, rural or service industry.

Industry - Light:

means an industry:

(a) in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises, will not cause any injury to, or will not adversely affect the amenity of the locality by reason of the emission of light, noise, electrical interference, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water or other waste products; and

(b) the establishment of which will not, or the conduct of which does not, impose an undue load on any existing or proposed service for the supply or provision of water, gas, electricity, sewerage facilities, or any other like services

Industry - Service:

means a light industry carried out on land or in buildings which may have a retail shop front and from which goods manufactured on the premises may be sold; or land and buildings having a retail shop front and used as a depot for receiving goods to be serviced.

Lunch Bar:

means premises or part of premises used for the sale of takeaway food (in a form ready to be consumed without further preparation) within industrial or commercial areas, but does not include a Fast Food Outlet.

Manufacture:

means the making of articles or materials by human, mechanical or electronic power.

Processing:

means the altering, producing or treating of an article or articles, but does not include the repackaging of food items purchased in bulk into smaller packages, and sale direct to the consumer.

Retail:

means the sale or hire of, goods or services to the public.

Warehouse:

means a building wherein goods are stored and may be offered for sale by wholesale.

Wholesale:

means the sale of any goods to any person or persons other than the ultimate consumer of those goods by a person or his trustee, registered as a `wholesale merchant' for Sales Tax purposes under the provisions of the Sales Tax Assessment Act No 1 1930 (as amended).

Applicant's submissions

The Applicant submits that the land use being carried out on the Land is 'Industry' as that term is defined in LPS 24. As a result, the use is a P use in the General Industry zone and because no physical works are involved, development approval under LPS 24 is not required.
Because no retail sales occur on the Land (they occur via server located in Sydney), the Applicant submits that cl 8.6.2 of LPS 24 is not engaged. Rather, the retail sales occur in the homes or workplaces of customers when they place their orders online.
The Applicant refers to the decision of Australian Unity Property Limited as responsible entity for theAustralian Unity Diversified Property Fund v City of Busselton (Australian Unity),[1] where the Court of Appeal set out the principles to be applied in properly construing a planning scheme. I will refer to these principles later in these reasons.
[1] Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 (Buss P, Murphy JA, Mitchell JA).
The Applicant stresses that LPS 24 only applies to the municipal district of Bayswater. That is made clear by cl 1.3 of LPS 24, by reference to s 73(1)(a) of the PD Act. Therefore, the land use must be viewed in the context that the scheme is only regulating development in the scheme area.
By reason of the definition of 'Industry' in LPS 24, industry land uses involve the carrying out of 'any process'. The process itself being carried out within the scheme area. Such process must relate to any one or more of the categories listed in the definition of Industry. These categories include, relevantly:
(a)the making, altering, packing, adapting for sale and the breaking up of any article or part of an article; and
(b)the manufacture of edible goods.
The Applicant contends that its use of the Premises does not involve the 'manufacture of edible goods'. Rather, the Business involves a 'process'.
The fact that 'process' and 'manufacture' are not synonymous terms was discussed by his Honour Allanson J in Harvis Capital Pty Ltd v MidWest/Wheatbelt Joint Development Assessment Panel.[2] However, the fact that the manufacture of edible goods is within the definition of 'Industry' is, the Applicant submits, relevant to the construction of the 'Industry' use.
[2] Harvis Capital Pty Ltd v Mid-West/Wheatbelt Joint Development Assessment Panel [2020] WASC 205 [86].
Industry also includes other related activities connected to the 'process' being carried out.
However, the definition of 'Industry' includes an exclusion in the following terms:
…
(c)in the case of edible goods the preparation of food for retail sale from the premises.
The Applicant submits that the exclusion to the definition of Industry is readily applicable given other uses such as 'Fast Food Outlet' and 'Lunch Bar', both of which require approval (as 'D' uses) in the General Industry zone. The exclusion also makes it clear that what is sought to be excluded is the retail sale of such products from the premises.
It is the sale from the premises, such premises being in the scheme area, that is excluded. It is not a prohibition on the sale of the goods, if that sale takes place away from the premises.
With respect to the term 'process', the constituent elements of the definition - 'alter', 'produce', treat' are not defined and therefore carry their ordinary meanings. These meanings are as follows:
alter means to make different in some particular; to modify.
produce means to bring into existence; give rise to; cause[.]
treat means … to subject to some agent or action to bring about a particular result[.][3]
[3] Macquarie Dictionary Online.

There is also an exclusion in the definition of 'processing' which is in the following terms: 'the repackaging of food items purchased in bulk into smaller packages, and sale direct to the consumer'.
The Applicant submits that, based on the Court of Appeal's analysis in Australian Unity,[4] the exclusion in the definition of 'processing' must be interpreted in a sensible and practical way. It could not exclude any process whereby articles are purchased in bulk and some of the articles are used in a product being sold to a customer. For example, a baker purchases flour in bulk and uses some of that flour, together with other ingredients, to bake a cake. A restaurant purchases many different food items and selects smaller servings of those food items to place on a charcuterie board.
[4] Australian Unity [84].
The Applicant submits that what is sought to be excluded is the simple act of taking one item purchased in bulk and repackaging that same item into smaller packages. For example, buying 40 kilograms of peanuts, putting them in bags holdings 200 grams of peanuts, and then selling those 200-gram bags direct to a customer.
Clause 8.6.2 of LPS 24 makes it clear that it is permissible to offer goods for sale by wholesale in industrial zones but imposes restrictions on retail sales. The language in sub-clauses (a), (b) and (c) is focused on conduct that occurs on land within the scheme area: the 'lot', the 'occupancy' and the 'site'.
Because LPS 24 only regulates land uses within the scheme area, it is only the offering of goods for retail sale from the premises that is sought to be regulated. If goods are processed and stored at premises, but no retail sales occur at or from those premises, then cl 8.6.2 is not engaged.
The Applicant submits that the only conduct that occurs at the Premises is the processing of various types of uncooked ingredients into the correct portions required for recipes into meal kit boxes. Before the ingredients are assembled into meal kits, they are stored within the Premises. After the meal kits have been assembled, they are stored pending being loaded into delivery vans.
The retail sales aspect of the Business takes place through a website, which is not hosted at the Premises. Orders are placed and paid for online and no part of the sales aspect of the Business takes place at the Premises. No customers attend the Premises.
The Applicant further submits that it is relevant to consider other uses and how this differs from the 'Industry' land use in constructing the relevant provisions. For example:
(a)In Fast Food Outlets or Lunch Bars; food is cooked ready to eat and the customer attends the premises to either consume the food or take it away. Many customers must attend for the business to be profitable, and this creates issues in relation to traffic and rubbish disposal.
(b)The type of business described in cl 8.6.2 - 50% of the occupancy can be used for the display and sale of the goods or produce.
The Applicant notes that the manufacture of edible goods is within the terms of the industrial land use. It is the retail sale of goods from industrial premises that takes such uses outside of what is permissible in industrial areas.
The Applicant also submits that the process to alter, pack and adapt for sale is carried out on the Premises, but the sale itself is not. This means that the Applicant's use is within the terms of the Industry land use and is not prohibited by cl 8.6.2 of LPS 24.

Respondent's submissions

The Respondent submits that in order to constitute an 'Industry', the use must involve the carrying out of a 'process in the course of trade or business for gain', for and incidental to one of the activities mentioned in paragraphs (a) to (d) of the definition.
The Respondent submits the use of the land does not fall within the terms of that definition because the Applicant is not carrying out any 'process' on the Land.
As has been set out previously, the term 'processing' is defined to mean:
the altering, producing or treating of an article or articles, but does not include the repackaging of food items purchased in bulk into smaller packages, and sale direct to the consumer.
Pursuant to s 9 of the Interpretation Act 1984 (WA), the corresponding meaning of that definition applies to the word 'process' as contained in the definition of 'Industry'. That is, a 'process' for the purposes of the definition of Industry which means a process by which an article or articles are altered, produced or treated and sold direct to the consumer, but does not include the repackaging of food items purchased in bulk into smaller packages and sold direct to the consumer.
The Respondent submits the Applicant's use of the Land, as described in the Agreed Facts, constitutes the repackaging of food items purchased in bulk into smaller packages and sold direct to the consumer. Accordingly, that activity is not a 'process' (as defined) and therefore, not an 'Industry' use for the purposes of LPS 24.
The Respondent further submits that the exclusion in the definition of 'processing' (being the repackaging of food items purchased in bulk into smaller packages, and sale direct to the consumer) (the Exclusion) is not intended to exclude only, as the Applicant submits, 'the simple act of taking one item purchased in bulk and repackaging that same item into smaller packages'. Rather, the Respondent submits there is no basis to limiting the application of the Exclusion in the manner submitted by the Applicant.
The Respondent agrees that the Exclusion does not apply to the activity of purchasing food items in bulk for use as ingredients in the production of food. The example given by the Applicant is the baker who purchases flour to use with other ingredients to produce a cake.
However, the Respondent submits that the act of baking has the effect of altering and treating the food items to produce a cake. The act of baking (or making the cake mix and then heating that mix) is clearly a 'process' and is something other than the 'repackaging' of food items. As a result, the Exclusion would not apply to processes involving the production of processed food, such as cakes, biscuits and potato chips, to name a few.
The Respondent says, in relation to the Applicant's example of the charcuterie board, that would not constitute an 'Industry' for the purposes of LPS 24. Rather, such a use would be a 'Restaurant' use. Accordingly, the Exclusion would not apply as the preparation and sale of food in a restaurant would not require 'processing' as defined by LPS 24.
The Respondent notes that the definition of processing expressly excludes the repackaging of food items purchased in bulk into smaller packages which are sold direct to the consumer. The meaning is clear and there is no mischief in giving those words their ordinary meaning. That activity is simply excluded from the definition of 'Industry'.
The Exclusion does not include food items purchased in bulk which are altered or treated in some way to produce a different product. Such a process can still be an 'Industry' use. However, the Exclusion does not, it is submitted, include the Applicant's activities of purchasing food items in bulk and repackaging those bulk food items into smaller packages for sale direct to the consumer.
The Respondent's written submissions also took issue with the Applicant's case that the Exclusion only applies to repackaged food items sold direct to the consumer where the sale and collection of food items occurs on the land itself.
Rather, the Respondent submitted that the Exclusion does not use the words 'retail sale' or 'from the premises' to limit the application of the words 'sale direct to the consumer'. As a result, sale direct to the consumer means 'any sale to any consumer, anywhere, by wholesale or retail, and does not require the actual transfer of the goods or payment to occur on the land itself'. That is consistent with the general construction of the term 'sale of goods' which is not dependent upon whether the goods are collected by the purchaser or delivered by the seller.
The 'sale' being the transaction rather than the passing of possession. In this regard, the Respondent refers to the decision in Banfield & Ors and Frank and Niki Beverwijk Pty Ltd (Banfield),[5] a case which addressed the question of whether a business selling motor vehicle towing accessories to the public, in the form of orders made by email, telephone and counter sales, was a 'retail shop' for the purposes of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA).
[5] Banfield & Ors and Frank and Niki Beverwijk Pty Ltd [2012] WASAT 240 [36]-[38].
The Respondent's written submissions set out that the words 'but does not include the repackaging of food items purchased in bulk into smaller packages' is an embedded clause. As a result, the words 'and sale direct to the consumer' also apply to the 'altering, producing or treating of an article or articles'.
However, in oral argument, counsel for the Respondent, Mr Gillet, conceded, properly in my view, that the phrase 'and sale direct to the customer' must be attached to the 'repackaging of food items, purchased in bulk, into smaller items'.[6] That is to say, the effect of the Exclusion is that the activity of 'repackaging of food items purchased in bulk, into smaller items and [their] sale direct to the customer' is not a 'process' for the purposes of LPS 24.
[6] ts 38, 13 September 2022.
The Respondent's ultimate submission is that the concept of sales is broad under LPS 24 and that the meal kits are being sold from the Premises. For that reason, the Business is an unlisted use requiring development approval under LPS 24.

Disposition

The relevant principles of construction

The applicable principles to the construction of a planning scheme are well-known. They were set out by the Court of Appeal in some detail in Australian Unity.[7] I can do no better than to set out and adopt the following analysis from Australian Unity.
[7] Australian Unity [77]-[85].
General Principles
77The submissions in this case were directed to establishing legislative intention. The relevant intention which is identified by the process of statutory construction is not the subjective understanding or motives of persons exercising delegated legislative power. Much less is it the subjective understanding or motivation of the officials charged with drafting the legislative text. Rather, the construction of LPS 21 is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context. As the High Court observed in Zheng v Cai:
It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws … the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. (Citations omitted)
78[Two] aspects of that constitutional relationship between the arms of government are of particular significance in the present case.
Importance of the legislative text
79The first aspect is the imperative to give primacy to the language which the legislating body has chosen to use. As the plurality observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Citations omitted)
80This focus on the statutory text may be seen as an aspect of the rule of law. It recognises and preserves the role of the legislature, acting within constitutional constraints, in identifying the policy which legislation is to pursue by requiring that effect be given to the chosen text. This point was noted by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:
The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of the acts of the Legislature' … it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.
81Additionally, focus on the statutory text facilitates the comprehension of the meaning of legislation by persons whose conduct it regulates. As French CJ observed in Alcan:
The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [(1991) 172 CLR 319 at [340] as: 'dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.' In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy. (some Citations omitted)
82These considerations are no less important when the legislative instrument being construed is a planning scheme. The terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.
83That is not to say that the statutory text is to be read divorced from its context and purpose. Context and purpose may affect the meaning of the language that Parliament has chosen to use. When the text is considered in its context, and having regard to the statutory purpose, it may be apparent that words are used with other than their ordinary meaning. The task of construction is not to make a fortress out of the dictionary. However, the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.
84In 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.
Identifying legislative purpose
85The second aspect of the constitutional relationship is that the legislative purpose which informs the proper construction of legislation is itself ascertained by a process of statutory construction, rather than the mere attribution to the legislature of what the court might regard as a desirable policy outcome. That is, legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted. Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. To do so would be inconsistent with the constitutional role of the courts and their proper relationship with Australian parliaments.
(Footnotes omitted)
To that I would add, consistent with the Court of Appeal's analysis in Australian Unity, that in interpreting LPS 24, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) is to be preferred to a construction that would not promote that purpose or object.[8]
[8] Interpretation Act 1984 (WA), s 18.
Because the preliminary issue is, in effect, a land use classification exercised, it is appropriate that I reiterate that the Tribunal has long recognised that in classifying a land use, 'the activities that comprise the particular use are key'.[9]
[9] ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central Joint Development Assessment Panel [2018] WASAT 63 [64].
Bearing these principles in mind, I must say this case is, at one level, somewhat novel. The Respondent's case appears to be that this use is, in effect, not 'industrial' enough to be an 'Industry' use such that approval is not required. As a result, because it is not industrial enough, it requires approval whereas a more standard industry, which involves more overt processing or manufacturing procedures (and amenity impacts), would be acceptable without the need for development approval.
The reality is that this is a use that occurs, leaving aside deliveries and pickups, totally within the confines of the warehouse (also leaving aside the contested question of where the sale of the meal kit boxes actually takes place).
That use that comprises the Business is as follows. Ingredients are delivered. Recipes are tested in the onsite kitchen and recipe cards developed for saleable recipes. The ingredients for the recipes are delivered and combined in precise portions to make up into meal kit boxes. The meal kit boxes are stored and then delivered to customers. There is no customer interaction at the Premises.
I turn now to the task of statutory construction based on the Agreed Facts.

Legislative purpose in the context of the preliminary issue

By way of context, I note at the outset that the Business operates in the context of a General Industry zone - that is, the Land sits in an industrial area. That industrial area is within the suburb of Maylands. The industrial area is, in effect, a series of industrial lots that front Foundry Road.
However, this series of industrial lots is surrounded by urban land that is, in large part, used for residential purposes. There are other such small industrial enclaves which are also surrounded by residential land on Charles Street and Sussex Street.
I find that background to be not without significance. Of course, of itself, it has no direct bearing on the meaning of the words within LPS 24, but it does provide an important context and informs, at some level, one of the legislative purposes of LPS 24. I will explain and develop that purpose further below.
There are no objectives for each of the zones within LPS 24. However, the general objects of LPS 24 are set out in cl 1.6. Such objects include 'to promote the orderly and proper development of land by making suitable provision for the use of land' (cl 1.6(a)) and 'to secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof' (cl 1.6(b)).

So far as these objects inform the constructional task that confronts me, it is apparent that the range of land uses available as P uses (that is 'permitted', not 'permissible') within the General Industry zone are uses that, unsurprisingly, are industrial in nature. For example, 'automotive panel beating' and 'automotive repairs' are both P uses as is a 'car wash'. A 'factory' is a P use as is a 'fuel depot'. On the other hand, as a broad observation, the Zoning Table does not permit, as P uses, uses of a retail nature in the General Industry zone.
The only use that is a P use in the General Industry zone which, in my view, can be said to have a retail focus is the 'Showroom' use.
However, a 'showroom' must be involved in the retail sale of 'automotive parts and accessories, camping equipment, electrical light fittings, floor coverings, furnishings, furniture, household appliances, party supplies, swimming pools, hardware or goods of a bulky nature but does not include the sale by retail of foodstuffs, liquor or beverages, items of clothing or apparel, magazines, newspapers, books or paper products, china, glassware or domestic hardware, or items of personal adornment.
In Australian Unity, the Court of Appeal explained that legislative purpose is a process of statutory construction focusing on what the legislation actually says, rather than mere attribution of what I might regard as a desirable policy outcome. It was also emphasised that identifying legislative purpose is an 'objective exercise'.[10]
[10] Australian Unity, [85].
Having regard to LPS 24, read as a whole, there is an objectively discernible intent to ensure that industrial uses are permitted uses in industrial areas, uses which have a distinct retail focus, such as, for example, a Fast Food Outlet, are permissible only in the exercise of discretion, not as of right.
There is, therefore, an apparent planning intent - read legislative purpose - to prevent, at least as P uses, the industrial lands of the City to have a retail or shop focus, in particular involving the sale of edible foods.
Leaving aside the principle that industrial land should be available for industrial land uses, ordinary planning experience suggests that retailbased land uses, including those that sell food, can often generate a number of planning issues that require consideration and management. These issues can arise in the form of parking, traffic and noise as well as hours of operation. Where proximate to residential areas, as the Land is, managing these issues can become more complex.
The planning merits of ensuring that industrial land uses can operate on land that is zoned and designated for those purposes, rather than simply allowing, as P uses, such land to be developed into enclaves with a retail focus, hardly needs to be explained.
An examination of the Zoning Table, and the permissibility of various uses in the zones, read with cl 8.6.2 and the definitions of 'Industry' and 'processing' in particular, provides a lens through which the legislative purpose of LPS 24, in so far as it relates to planning for the City's industrial areas, can be discerned. Such a lens focuses attention on the town planning issues that the City is seeking to manage. Those planning issues inform the legislative purpose of the scheme, which itself assists in the construction exercise, as was explained in Australian Unity.
As I have explained that lens - which involves consideration of LPS 24 as a whole - illuminates a position that uses that have a retail focus, including the sale of food, are not to be P uses in the City's industrial areas. That is to say, they are not to be regarded as Industry uses that ought to be permitted as of right. Rather, they are non-Industry uses that must be approved in the exercise of planning discretion.

The text of LPS 24

I turn now to the most important aspect of the construction exercise, the text of LPS 24. I have, above, set out the relevant scheme provisions that fall for consideration.
The fundamental issue that I must resolve is whether the activities that comprise the Business fall within the terms of 'Industry' for the purposes of LPS 24. If I am so satisfied, then it follows that the written direction should not have been issued.
For convenience, Industry is defined in LPS 24 as follows:
Industry:means the carrying out of any process in the course of trade or business for gain, for and incidental to one or more of the following:
(a)the winning, processing or treatment of minerals;
(b)the making, altering, repairing, or ornamentation, painting, finishing, cleaning, packing or canning or adapting for sale, or the breaking up or demolition of any article or part of an article;
(c)the generation of electricity or the production of gas;
(d)the manufacture of edible goods;
and includes, when carried out on land upon which the process is carried out and in connection with that process, the storage of goods, any work of administration or accounting, or the wholesaling of, or the incidental sale of goods resulting from the process, and the use of land for the amenity of persons engaged in the process; but does not include;
(a)the carrying out of agriculture;
(b)on-site work on buildings or land; and
(c)in the case of edible goods the preparation of food for retail sale from the premises.

The Business falls within the terms of the Industry use

Before I proceed, it is appropriate that I reiterate that I am considering the question of whether the Business is an Industry in the context of LPS 24. That is to say, I am only considering whether the Business is an Industry for town planning purposes, no other.[11] For that reason, how a store was characterised for the purposes of retail tenancy legislation, as was the case in Banfield, does not really assist my task.
[11] Moles and City of Armadale [2021] WASAT 140, [106]-[108].
In my view, having regard to that definition and based on the Agreed Facts, I am satisfied that the Business:
(a)is involved in trade or business for gain;
(b)carries out a process; and
(c)involves the making, altering or adapting for sale of articles,
such that the Business falls within the terms of the definition of 'Industry' within LPS 24.
I will deal with each of these aspects in turn.
There is no room for argument that the Business is 'involved in trade or business for gain'. Indeed, the Respondent does not suggest otherwise. The Business is a commercial enterprise involved in trade or business for commercial profit.
On the question of whether the Business carries out a 'process', I am satisfied that it does. The terms 'alter', 'produce' and 'treat' are not defined and therefore carry their ordinary meaning.
On any level, but particularly reading and applying LPS 24 in a common sense, broad and not a pedantic fashion, and taking proper account of its town planning purpose, the meal kit boxes are 'produced' by the Business. That is to say, the meal kit boxes are 'brought into existence' by the 'altering' of a range of 'articles'. Those articles include the raw ingredients which are combined together and then coupled with the recipe cards which result in the creation of a product that is ready for sale: the meal kit box.
At a broad level, the Business also involves 'altering' the raw ingredients. They are transformed (and transferred) from being a series of standalone ingredients and are combined using some degree of skill and judgement so as to form a recipe. These ingredients sit together in the meal kit box together with the recipe card. They enter the warehouse in bulk and are then separated, combined and assembled so as to form the recipes. The ingredients leave the warehouse in a far different form than which they entered.
Furthermore, the process of developing these recipe cards takes place at the Premises. That is to say, the ingredients are tried, combined, tested and refined to develop the recipes that will form the basis of the meal kit boxes which are available for purchase. I struggle to see how that can be anything but a 'process' for the purposes of LPS 24.

The Exclusion does not apply to the Business

I turn next to the Exclusion. I do not consider the Exclusion in the definition of 'processing' in LPS 24 applies to the Business. For three reasons, the words used 'the repackaging of food items purchased in bulk into smaller packages, and sale direct to the customer' does not reflect the operation of the Business and therefore have no application.
Firstly, the Business does not conduct any sales from the Land 'direct to the customer'. In this regard, I do not accept the Respondent's submissions. It is an Agreed Fact that the sale process takes place via a server located in Sydney. There is no sales aspect occurring on the Land. The meal kit boxes are picked up from the Premises by a delivery van. Customers do not attend the Land.
I also consider that, if the term 'sale' was applied too broadly, as the Respondent urges, it is arguable that everything produced or manufactured in an industrial area is ultimately 'sold'. What is important, in town planning terms, is that there are no customers attending the Land and the issues that often arise where such retail uses are located, do not arise. As I have explained, that is the mischief the City is seeking to address in its industrial areas having regard to LPS 24.
In 2023, it seems trite to observe that modern commercial arrangements might involve a sale taking place at one location and the production and delivery of the purchased item from another. Anyone who has placed an online delivery order for groceries from a major supermarket chain would be aware that the sale process may take place well away from the store from which the purchased goods will be delivered.
Secondly, the ingredients are not merely being 'repackaged'. That term does not fairly describe the processes being conducted in the Business. It does not explain the development of the recipes in the kitchen, nor does it adequately describe the manner in which the meal kit boxes are assembled.
The term 'repackaging' takes its ordinary common meaning. When used as a verb, it means 'to present again with a different look'.[12] The production of the meal kit boxes is not the mere repackaging of a food item. The individual food items are portioned and combined together - which is not the same as merely repackaging - so as to form the elements of the recipe. It is not simply 're-presenting' the food ingredients with a different look. They are combined together in precise portions so as to form a recipe which is then presented in a meal kit box.
[12] Macquarie Dictionary Online.
Thirdly, and perhaps most importantly, the definition of processing, and in particular the Exclusion, are plainly directed to another mischief. That mischief is for what are, in substance, food markets or supermarkets (or similar) and other similar enterprises to argue that they are involved in the 'carrying out of a process' and thus an industry for the purposes of LPS 24, even though they are, in substance, retail land uses.
The planning reasons for including the Exclusion are obvious. The intent of the Exclusion is to prevent commercial food retailing operations to masquerade as industrial uses. Such uses attract substantial retail traffic which creates significant planning issues. The Exclusion is directed to managing that planning issue. As I have stated, the Business does involve retail sales from the Land.
Because I am not satisfied that the Land is used for the purposes of retail sales in a real, tangible and practical sense, cl 8.6.2 of LPS 24 does not arise for consideration.
With respect, I am of the view that the City has taken an overly narrow and pernickety approach in applying LPS 24 as it relates to the Business, and in issuing the Direction.
The Business involves a process that results in the development of recipes and the production of a meal kit box which is then delivered to customers. The Business does not attract retail traffic and customers which, I accept, would not be an Industry use and would be inconsistent with the purpose of LPS 24, which, objectively considered, is not to allow such uses in industrial areas as of right.
I am also satisfied that such a construction accords with the stated objectives of LPS 24 including, relevantly, 'to promote the orderly and proper development of land by making suitable provision for the use of land' and 'to secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof'.
Reading and applying LPS 24 in a broad, and not a pedantic, fashion having regard to its planning purpose, for the reasons I have explained, the Business falls within the terms of the 'Industry' use class.

Conclusion

For these reasons, the Business, so much as it relates to the Land, is an 'Industry' use. To my mind, my preliminary view is that the consequence of this conclusion must be that the Business is either properly classified as either a 'General Industry' or 'Light Industry' use under LPS 24.
Because a 'Light Industry' use requires an anterior finding that the use causes no amenity impacts on the locality - there is no basis on which I am currently able to conclude that the Business is a Light Industry use. As a default, if the Business is not properly a Light Industry, it must, in my view, be a General Industry for the purposes of LPS 24.
In any event, both General Industry and Light Industry are P uses in the General Industry zone and thus do not require approval under LPS 24 where no works are proposed.
It follows that the answer to the preliminary issue must be 'no'. A corollary of that is that I am of the view that, standing in the shoes of the Respondent, there is no basis on which I have power to affirm the Direction.
I should hear from the parties as to any orders necessary to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
7 FEBRUARY 2023

Fast Foods Outlet:	means premises, including premises with a facility for drive-through service, used for the preparation, sale and serving of food to customers in a form ready to be eaten – (a) without further preparation; and (b) primarily off the premises.
Industry:	means the carrying out of any process in the course of trade or business for gain, for and incidental to one or more of the following: (a) the winning, processing or treatment of minerals; (b) the making, altering, repairing, or ornamentation, painting, finishing, cleaning, packing or canning or adapting for sale, or the breaking up or demolition of any article or part of an article; (c) the generation of electricity or the production of gas; (d) the manufacture of edible goods; and includes, when carried out on land upon which the process is carried out and in connection with that process, the storage of goods, any work of administration or accounting, or the wholesaling of, or the incidental sale of goods resulting from the process, and the use of land for the amenity of persons engaged in the process; but does not include; (a) the carrying out of agriculture; (b) on-site work on buildings or land; and (c) in the case of edible goods the preparation of food for retail sale from the premises.
Industry - General:	means an industry other than a cottage, extractive, hazardous, light, noxious, rural or service industry.
Industry - Light:	means an industry: (a) in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises, will not cause any injury to, or will not adversely affect the amenity of the locality by reason of the emission of light, noise, electrical interference, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water or other waste products; and (b) the establishment of which will not, or the conduct of which does not, impose an undue load on any existing or proposed service for the supply or provision of water, gas, electricity, sewerage facilities, or any other like services
Industry - Service:	means a light industry carried out on land or in buildings which may have a retail shop front and from which goods manufactured on the premises may be sold; or land and buildings having a retail shop front and used as a depot for receiving goods to be serviced.
Lunch Bar:	means premises or part of premises used for the sale of takeaway food (in a form ready to be consumed without further preparation) within industrial or commercial areas, but does not include a Fast Food Outlet.
Manufacture:	means the making of articles or materials by human, mechanical or electronic power.
Processing:	means the altering, producing or treating of an article or articles, but does not include the repackaging of food items purchased in bulk into smaller packages, and sale direct to the consumer.
Retail:	means the sale or hire of, goods or services to the public.
Warehouse:	means a building wherein goods are stored and may be offered for sale by wholesale.
Wholesale:	means the sale of any goods to any person or persons other than the ultimate consumer of those goods by a person or his trustee, registered as a `wholesale merchant' for Sales Tax purposes under the provisions of the Sales Tax Assessment Act No 1 1930 (as amended).