NEWCO MILLS PTY LTD and PRESIDING MEMBER OF THE METRO OUTER JOINT DEVELOPMENT ASSESSMENT PANEL - [2021] WASAT 160

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   NEWCO MILLS PTY LTD and PRESIDING MEMBER OF THE METRO OUTER JOINT DEVELOPMENT ASSESSMENT PANEL [2021] WASAT 160
MEMBER:   PRESIDENT PRITCHARD
HEARD:   11 FEBRUARY 2021
DELIVERED          :   14 DECEMBER 2021
FILE NO/S:   DR 204 of 2020
BETWEEN:   NEWCO MILLS PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METRO OUTER JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Planning - City of Swan Local Planning Scheme No. 17 (Scheme) - Review of decision by Metro Outer Joint Development Assessment Panel to deny planning approval - Preliminary Issue - Proposed development of a stock feed grain mill - Whether proposed development fell within uses permitted by 'Industry - Rural' use class - Construction of relevant Scheme provisions - Relevance of decision in Harvis Capital Pty Ltd v Mid-West/Wheatbelt Joint Development Assessment Panel [2020] WASC 205 - Proposed development fell within use class classification of 'Industry - General'

Legislation:

Interpretation Act 1984 (WA), s 5
Planning and Development Act 2005 (WA)

Result:

Preliminary issue determined in favour of respondent

Representation:

Counsel:

Applicant	:	Mr M Hotchkin
Respondent	:	Mr J Misso

Solicitors:

Applicant	:	Hotchkin Hanly
Respondent	:	State Solicitor's Office

Case(s) referred to in decision:

Attwell and City of Albany [2009] WASAT 38; (2009) 61 SR (WA) 25
Australian Unity Property Limited v City of Busselton [2018] WASCA 38
Castle and City of Rockingham [2018] WASAT 98
Ecogrowth International Pty Ltd and City of Swan [2012] WASAT 109
Harvis Capital Pty Ltd Mid-West/Wheatbelt Joint Development Assessment Panel [2020] WASC 205
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

In these proceedings, Newco Mills Pty Ltd (Newco Mills) seeks a review of a decision of the Metro Outer Joint Development Assessment Panel (Panel) made on 17 August 2020 (Decision). In the Decision, the Panel refused an application (Application) made by Newco Mills for planning approval to construct a stock feed grain mill (proposed development) on Lot 1780 Gaston Road Bullsbrook (Land). The Application was refused on the basis that the proposed development would fall within the definition of 'Industry - General' or 'Industry - Light' in the City of Swan Local Planning Scheme No. 17 (Scheme) and was not a permissible use of the Land.
Senior Member Willey ordered that a preliminary issue be determined by the Tribunal (Preliminary Issue), namely:
Whether the proposed development is properly classified as: (a) 'Industry - Rural' and therefore capable of approval; or (b) 'Industry - Light' or 'Industry - General' and therefore prohibited under the [Scheme].
Because the answer to the Preliminary Issue was said to depend, at least to some extent, on the correctness of the reasoning adopted by the Supreme Court in Harvis Capital Pty Ltd v Mid-West / Wheatbelt Joint Development Assessment Panel[1] (Harvis Capital) the Preliminary Issue was listed before me for determination.
[1] Harvis Capital Pty Ltd Mid-West/Wheatbelt Joint Development Assessment Panel [2020] WASC 205.
For the reasons set out below, the answer to the Preliminary Issue is that the proposed development does not fall within the use class 'Industry - Rural'. Having regard to the available evidence, the proposed development falls within the use class 'Industry - General' for the purposes of the Scheme. A development of that kind on the Land is not permitted under the Scheme. The Preliminary Issue should be answered accordingly.
In these reasons I deal with the following issues:
(a)The factual basis for the determination of the Preliminary Issue;
(b)The proposed development;
(c)The statutory planning framework;
(d)Construction of the relevant Scheme provisions;
(e)The relevance of the decision in Harvis Capital;
(f)Why the proposed development does not fall within the use class 'Industry - Rural' under the Scheme, and instead falls within the use class 'Industry - General'.

(a) The factual basis for the determination of the Preliminary Issue

The facts which formed the basis for the Preliminary Issue were established by an Agreed Bundle of Documents,[2] and a witness statement of Stephen Grenville Lamond, who is a director of Newco Mills.[3] There was no dispute as to the matters to which Mr Lamond deposed in his witness statement, which was admitted without objection or cross examination.
[2] Exhibit 1.
[3] Exhibit 2.
The Land is located within the area the subject of the Scheme. The Land is zoned 'Rural' under the Metropolitan Region Scheme and 'General Rural' under the Scheme.[4]
[4] Exhibit 1, document 3, page 8.
On 23 March 2020, the Burgess Design Group, acting on behalf of Newco Mills, lodged the Application, seeking approval for a 'proposed stock feed grain mill (Industry - Rural)'. In other words, Newco Mills considered that the proposed development fell within the uses permitted by the use class 'Industry - Rural'. That was on the basis that '[t]he feed mill is considered to be consistent with the objectives of the 'General Rural' zone to facilitate the use and development of productive rural activities, which will contribute towards the economic base of the region'.[5]
[5] Exhibit 1, document 3, page 17.
The Panel received a responsible authority report in relation to the Application. The authorising officer's recommendation was that the Panel should approve the Application, subject to conditions. That recommendation was made on the basis that the proposed development fell within the use classification of 'Industry - Rural' under the Scheme.[6]
[6] Exhibit 1, document 5, page 1.
Initially, the recommendation of the City of Swan, consistent with the recommendation of the authorising officer, was that approval should be given to the proposed development on the basis that the use of the Land met the definition of the 'Industry - Rural' land use class for which planning approval could be given, in the exercise of discretion; the proposed development was considered to be consistent with the objectives of the General Rural zone, in that it should contribute to the rural economy and should not adversely impact the rural character and amenity of the area nor degrade the land upon which it was proposed; and traffic could be accommodated.[7]
[7] Exhibit 1, document 5, pages 16 17.
However, as the authorising officer noted in his report, the Council of the City of Swan later changed its view.[8] That was because the City of Swan received advice about the relevance of the decision in Harvis Capital and recommended that the Panel refuse the Application on the basis that:
The application is considered to fall within either the use class of 'Industry-General' or 'Industry - Light', neither of which are uses permissible within the 'General Rural' zone applicable to the land.[9]
[8] Exhibit 1, document 5, page 16.
[9] Exhibit 1, document 6.
Counsel for Newco Mills submitted that the Preliminary Issue arose for determination because the proper use classification for the proposed development was 'Industry - Rural' and it was therefore capable of being approved in the exercise of discretion. Newco Mills' case was that the determination of the Preliminary Issue may eliminate the need for a final hearing because if the answer to the Preliminary Issue is that the proposed development does not fall within the use class 'Industry - Rural' the Application must be dismissed, whereas if the proposed development does fall within the use class 'Industry - Rural' the Panel may reconsider its decision to refuse approval.[10]

(b) The proposed development

[10] Applicant's submissions [1].

As described in the Application, the proposed development would comprise a feedmill shed, a packing/warehouse building, an administration building, a mixing station, a utilities building, parking areas made of bitumen hardstand for trucks and other vehicles, and numerous silos.[11] It was anticipated that the facility would operate for 24 hours per day, 5 days per week, with occasional operations on Saturdays for additional production, and for maintenance.[12]
[11] Exhibit 1, document 3, pages 17 18.
[12] Exhibit 1, document 3, page 27.
In the Application, the proposed development was described as a feed mill which 'consists of two separate processing lines operating in parallel … . One line will produce for the Non-Ruminant (monogastric) market and the other serving the Ruminant market'.[13] However, in his witness statement, Mr Lamond confirmed that the proposed development would in fact encompass three processing lines. These are described below.
[13] Exhibit 1, document 3, page 17.
In his witness statement, Mr Lamond explained that the proposed development was intended to be similar to an existing stock feed grain mill operated by Newco Mills' parent company in Upper Swan, with one exception: the Upper Swan mill had two processing lines, while the proposed development was intended to have three processing lines.
It was anticipated that the proposed development would receive grains and seeds, which would be handled in three ways. First, there was to be a cleaning line. On that line, the grain would be cleaned, using gravity screens and an air aspirated grain cleaner, to remove weed seeds and stalks. The cleaned grains would then either be used on the other lines, or would be packed into product bags for distribution as feed for poultry.[14]
[14] Exhibit 2, Annexure SL1, section 3.
Secondly, the proposed development was to include a mill line. Inthe mill line, various grains (namely wheat, barley, oats and lupins) would be ground to reduce their particle sizes, and smaller quantities of other ingredients would be added, namely vitamins and minerals. Themixture would then be steamed and compressed using a pellet press to produce nutritionally complete animal feed pellets, for animals including chickens and horses, which would then be bagged fordistribution.[15]
[15] Exhibit 2, Annexure SL1, section 2.
Thirdly, the proposed development was to include a muesli line. Inthe muesli line, grains and seeds, including oats, barley, lupins, maize and faba beans would be flattened using a rolling mill and steam to improve their palatability and digestibility for the animals for which they were intended, namely horses, cattle, goats, alpacas and kangaroos. Thegrains and seeds would then be weighed, combined with liquid oil, coated with molasses and mixed, before being bagged for distribution.[16]

(c) The statutory planning framework

[16] Exhibit 2, Annexure SL1, section 4.

The Land falls within the area subject to the Scheme. A copy of the Scheme text was included in the Agreed Bundle of Documents.[17]
[17] Exhibit 1, document 1.
The Scheme classifies the land which is subject to the Scheme as either zones or reserves.[18] The Land in this case is classified as part of the 'General Rural' zone under the Scheme.
[18] Exhibit 1, document 1 (Scheme) cl 4.1.
The Zoning Table which is included in the Scheme text sets out the permissibility of uses in the Scheme area within the various zones, by cross-referencing the list of use classes and the list of zones.[19] Uses which are permitted, not permitted other than by an exercise of discretion in favour of planning approval, not permitted other than by an exercise of discretion in favour of planning approval after the giving of special notice, or not permitted at all, are indicated by the symbols P, D, A and X respectively.[20]
[19] Exhibit 1, document 1 (Scheme) cl 4.3.1.
[20] Exhibit 1, document 1 (Scheme) cl 4.3.2.
A variety of land use classes are identified in the Scheme, which each include the word 'industry' in their title: 'Industry - Cottage', 'Industry - Extractive', 'Industry - General', 'Industry - Light', 'Industry - Mining', 'Industry - Noxious', 'Industry - Rural', and 'Industry - Service'. I will refer to these collectively as the 'industry land use subclasses'.
The various industry land use sub-classes are defined as follows:
•Industry - cottage means a trade or light industry producing arts and crafts goods which does not fall within the definition of a home occupation and which –
(a)does not cause injury to or adversely affect the amenity of the neighbourhood;
(b)where operated in a residential zone, does not employ any person other than a member of the occupier’s household;
(c)is conducted in an out-building which is compatible with the principal uses to which land in the zone in which it is located may be put;
(d)does not occupy an area in excess of 50 square metres; and
(e)does not display a sign exceeding 0.2 square metres in area.
•Industry - extractive means an industry which involves the extraction, quarrying or removal of sand, gravel, clay, hard rock, stone or similar material from the land and includes the treatment and storage of those materials, or the manufacture of products from those materials on, or adjacent to, the land from which the materials are extracted, but does not include industry - mining.
•Industry - general means an industry other than a cottage, extractive, light, mining, 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 do not cause any injury to or adversely affect the amenity of the locality; and
(b)the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services.
•Industry - mining means land used commercially to extract minerals from the land.
•Industry - noxious means an industry in which the processes involved constitute an offensive trade within the meaning of the Health Act 1911 (as amended) but does not include wet fish shops or piggeries or a waste disposal process operation carried out by or under the direct management and supervision of the City.
•Industry - rural means
(a)an industry handling, treating, processing or packing rural products; or
(b)a workshop servicing plant or equipment used for rural purposes.
•Industry - service means
(a)an industry - light carried out from premises which may have a retail shop front and from which goods manufactured on the premises may be sold; or
(b)premises having a retail shop front and used as a depot for receiving goods to be serviced.
While there is no use class described as 'Industry', the use class 'Industry - General' clearly constitutes the default position for industrial use when none of the more specific industry land use sub-classes apply. That is apparent from the definition of 'Industry - General', but in any event, the Scheme provides that where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.[21]
[21] Exhibit 1, document 1 (Scheme) cl 4.4.1.
The Zoning Table indicates that for land zoned 'General Rural', uses falling within the use classes 'Industry - General', 'Industry - Light', 'Industry - Noxious' and 'Industry - Service' are not permitted, whereas uses within the use classes 'Industry - Cottage', 'Industry - Extractive', 'Industry - Mining' and 'Industry - Rural' are only permitted in the exercise of discretion in favour of the grant of planning approval.
When a local government is considering an application for planning approval, it is to have due regard to a range of matters as are, in the opinion of the local government, relevant to the use or development the subject of the application, including the aims, objectives and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area; the requirements of orderly and proper planning; and any other planning consideration that the local government considers relevant.[22]
[22] Exhibit 1, document 1 (Scheme) cl 10.2.
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class, the local government is permitted to refer to the objectives of the zone in question to determine whether the use is, or may be, permitted.[23]

(d) Construction of the relevant Scheme provisions

[23] Exhibit 1, document 1 (Scheme) cl 4.4.2.

The determination of the Preliminary Issue turns on the proper construction of the terms of the description (that is, the definition) of the use class 'Industry - Rural'.
Leaving to one side the question of the relevance of Harvis Capital to the determination of this case, neither of the parties submitted that the proper construction of the definition of the use class 'Industry - Rural' in the Scheme had been the subject of any other decision binding on the President of the Tribunal. Use class definitions in the same or similar terms in other local planning schemes have been the subject of a number of other decisions of the Tribunal. I refer to those in the context of the discussion of Harvis Capital, below.
It is appropriate to commence by construing the use class 'Industry - Rural' according to orthodox principles of construction.
The construction of a local planning scheme, which constitutes subsidiary legislation,[24] involves determining the objective meaning of the terms used, by the application of recognised rules of interpretation to the text, understood as a whole and in its context.[25] The meaning must emerge from the statutory text, understood in its context, but also having regard to the statutory purpose being pursued.[26]
[24] Interpretation Act 1984 (WA) s 5.
[25] Australian Unity Property Limited v City of Busselton[2018] WASCA 38 (Australian Unity Property Limited v City of Busselton) [77].
[26] Australian Unity Property Limited v City of Busselton [83].
It is well established that planning schemes should be construed broadly rather than pedantically, and with a sensible practical approach.[27] That approach recognises that planning schemes are not usually drafted by parliamentary counsel and are often expressed in terms which lack the precision of a statute.[28] That approach also recognises that 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 a scheme applies. For that reason, the Court of Appeal has cautioned against placing a counter-intuitive judicial gloss on the plain language of planning schemes because to do so would reduce the capacity of the range of persons who use such schemes to comprehend their meaning.[29] Nevertheless, the exercise of construction 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.[30]

The construction of the definition of the 'Industry - Rural' land use class in the Scheme

[27] Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132 [25].

[28] Australian Unity Property Limited v City of Busselton [84].

[29] Australian Unity Property Limited v City of Busselton [82].

[30] Australian Unity Property Limited v City of Busselton [84].

Although I have already referred to the definition of the 'Industry - Rural' use class, it is convenient to set out that definition again:
Industry - rural means
(a)an industry handling, treating, processing or packing rural products; or
(b)a workshop servicing plant or equipment used for rural purposes.

There is no dispute that the second part of the definition of the 'Industry - Rural' use class has no application in this case. At the heart of the Preliminary Issue is what is meant by the phrase 'an industry handling, treating, processing or packing rural products'.
I will deal separately with the various considerations relevant to the construction of that definition, although it must be borne in mind that in resolving the overall constructional choices which arise in relation to the meaning of the words used, all of these considerations must be taken into account together, rather than in isolation:
(i)The use and meaning of the term 'industry' in the Scheme;
(ii)The meaning of the terms 'handling', 'treating', 'processing', 'packing' and 'rural products';
(iii)Other context considerations relevant to the construction of the words used;
(iv)Is the meaning of 'industry' in the Scheme modified or excluded in the definition of 'Industry - Rural'?

The use and meaning of the term 'industry' in the Scheme

It is appropriate to consider, first, how the term 'industry' is used in the Scheme, and then to consider the meaning of that word in the context of the land use classifications in the Scheme.

How the term 'industry' is used in the Scheme

The word 'industry' has a number of meanings.[31] Some of those meanings encompass activities involving trade and the production of goods, or refer to all of the businesses and entities involved in that endeavour: 'productive work, trade, or manufacture', 'manufacturing and production carried out on a commercial basis, typically organised on a large scale and requiring the investment of capital', 'manufacturing or production and those involved in it, regarded as an entity', 'a particular form or sector of productive work, trade or manufacture [and] also with [a] modifying word indicating the type of activity or principal product [such as the banking industry or car industry]', and 'any activity portrayed as a flourishing and highly productive commercial enterprise'.[32]
[31] These include 'skill, ingenuity, or cleverness in the execution of anything', 'an application of skill, ingenuity or cleverness', and 'exertion, effort, hard work; diligence or assiduity in the performance of a task': see Oxford English Dictionary Online.
[32] Oxford English Dictionary Online.
However, the Scheme provides that 'unless the context otherwise requires', words and expressions used in the Scheme have the same meaning as they have in the 'Planning Act'[33] (that is, the Planning and Development Act 2005 (WA) (PD Act)) or, if they are not defined in that Act, in the Dictionary to the Scheme (Dictionary) or in the Residential Design Codes (RDC).[34] In other words, the context may require that words used in the Scheme have their ordinary meaning, rather than the meaning attributed to them in the PD Act, the Dictionary to the Scheme or the RDC.
[33] Exhibit 1, document 1 (Scheme) Sch 1 cl A (definition of 'Planning Act').
[34] Exhibit 1, document 1 (Scheme) cl 1.7.
The word 'industry' is defined in the Dictionary to the Scheme, in the following way:
Industry means premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes the use of premises on the same land used for –
(a)the storage of goods;
(b)the work of administration or accounting;
(c)the selling of goods by wholesale or retail; or
(d)the provision of amenities for employees;
incidental to any of those industrial operations.
The word 'industry' or its derivatives, is used in a number of different contexts in the Scheme.
First, there are a variety of industrial zones - the Light Industrial Zone, General Industrial Zone and Industrial Development Zone.
Secondly, various land use classes, namely the industry land use sub-classes to which I have referred, each feature the word 'industry' in their title, and in the description of the land uses they cover.
Thirdly, as I have already noted, the Dictionary to the Scheme defines the word 'industry'. Significantly, that definition of 'industry' appears in the Dictionary under the heading 'Land Use Definitions'. That tends to suggest that that meaning of the term 'industry' is only to be applied when that word is used in the context of describing or defining land use classifications. In contrast, the term 'dry industry' is defined in the Dictionary, in the 'General Definitions' section, to refer to certain industrial uses (namely those which generate a limited volume of waste water, and where effluent can be disposed of without adverse environmental effects). In the latter context, the word 'industry' appears to be used with its ordinary meaning.
Fourthly, the word 'industry' appears in a number of other places within the Scheme. By way of example, the objectives of the General Industrial Zone include to 'ensure environmental performance of industry does not detract from the amenity of adjacent sensitive areas'.[35] Similarly, the Scheme refers to planning approval for Telecommunications Infrastructure, and in that context refers to the need to 'demonstrate an industry-wide strategic approach to the location of such infrastructure throughout the City'.[36] In these contexts, the word 'industry' appears to bear its ordinary meaning, rather than its Dictionary meaning, and to refer to the entirety of the businesses and entities engaged in manufacturing, production and commercial enterprises.
[35] Exhibit 1, document 1 (Scheme) cl 4.2.5(d).
[36] Exhibit 1, document 1 (Scheme) cl 5.8(c).
In short, the word 'industry' does not have the same meaning in each of the instances where it is used in the Scheme. The context will determine whether the word bears the meaning it has in the Dictionary, or its ordinary meaning.

The meaning of the term 'industry' in the definition of 'Industry - Rural'

The definition of the land use classification 'Industry - Rural' refers to the word 'industry'. The answer to the Preliminary Issue turns, in part, on whether the meaning of that term in that context is the meaning of the word 'industry' in the Dictionary to the Scheme, or whether the context requires that 'industry' be understood as having a different meaning (namely one of its ordinary meanings).
Counsel for Newco Mills submitted that unless the context otherwise required, the meaning of the word 'industry', as defined in the Dictionary to the Scheme, was incorporated into the meaning of the various use classes.[37] As I understood his argument,[38] it would mean that the definition of the 'Industry - Rural' use class should be understood, in effect, as follows:
[37] Ts 7.
[38] Cf counsel's explanation of his construction in the context of the definition of the 'Industry - Cottage' use class: ts 9.
Industry - rural means
(a)An industry (that is, premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances) [and for] handling, treating, processing or packing rural products, and includes the use of premises on the same land used for -
(i)the storage of goods;
(ii)the work of administration or accounting;
(iii)the selling of goods by wholesale or retail; or
(iv)the provision of amenities for employees;
incidental to any of those industrial operations
or
(b)a workshop servicing plant or equipment used for rural purposes.
For the reasons set out below, I am unable to accept that this construction is correct.
The definition of 'industry' in the Dictionary to the Scheme is extremely broad. It has five key components. First, it contemplates the use of 'premises' on the land in question. The word 'premises' is not defined in the Scheme. In its present context, the meaning conveyed refers to a 'house or building, together with its grounds, outhouses' and 'a building or part of a building that houses a business'.[39] The definition of 'industry' in the Scheme thus contemplates that activities in connection with a particular industry will usually be undertaken in buildings.
[39] Oxford English Dictionary Online.
Secondly, the definition of 'industry' refers to various activities being undertaken with respect to 'goods, products, articles, materials or substances'. It is apparent from the context that the activities may be undertaken on those items, or the activities may be undertaken to produce those items.
Thirdly, the definition of 'industry' refers to the use of premises for a very wide variety of activities: manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing. I will refer to these activities as the primary uses in the definition of 'industry'. It is apparent that those terms seek to encompass the full range of activities which might be said to fall within the ordinary meaning of 'industry' in so far as that meaning is concerned with trade and the production of goods. Those terms - manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing - are not themselves defined in the Scheme. Their ordinary meaning therefore applies.
The ordinary meaning of the verb 'manufacture' encompasses making products or goods out of raw materials to produce other goods, using physical labour or machinery, especially on a large scale, and converting raw materials or ingredients into a specified product;[40] and 'to make or produce by hand or machinery, especially on a large scale'.[41] So, for example, steel is manufactured by combining iron and carbon at very high temperatures in furnaces, and once in a liquid (molten) form it is cast into shapes, and after it cools and hardens it can be worked, using machinery, into sheets, bars, pipes, blocks and wires.
[40] Oxford English Dictionary Online.
[41] Macquarie Dictionary Online.
The meaning of 'assembly,' a derivative of 'assemble,' includes to put together (as in the separately manufactured parts of a composite machine or mechanical appliance);[42] and 'the putting together of complex machinery, [such] as aeroplanes, from interchangeable parts of standard dimensions'.[43] So, an assembly line in a car factory involves a process where each component of a car is put together to make the whole car.
[42] Oxford English Dictionary Online.
[43] Macquarie Dictionary Online.
The meaning of the word 'processing' encompasses 'to operate on mechanically or chemically; specifically to preserve or alter (food, a foodstuff, etc.)'; 'to deal with something, especially according to an established procedure';[44] and 'to convert (an agricultural commodity) into marketable form by some special process'.[45] So, for example, fresh fruit may be processed into dried fruit by subjecting it to dehydration using dehydrators or ovens. According to the Macquarie Dictionary, the meaning of the verb 'process' also includes 'to treat or prepare by some particular process, as in manufacturing'. That is not a particularly helpful definition, because the definition incorporates the very word it seeks to define. However, as I understand that meaning, it alludes to the fact that the various steps which may be involved in manufacturing a good may also include processes. That does not mean that those processes themselves equate to manufacturing, but rather recognises that individual acts of processing may contribute, ultimately, to the manufacture of something.
[44] Oxford English Dictionary Online.
[45] Macquarie Dictionary Online.
I pause there to observe that each of those activities - manufacture, processing, assembly - has some similarity, and there may be some overlap between them, but they are clearly not synonymous. For example, manufacturing a car involves, in part, assembling all of the individual components, but manufacturing a car involves much more than the assembly of component parts. Manufacturing a car starts with manufacturing each of its individual components, from the raw products used to make them (such as by manufacturing steel). Similarly, making those individual components may involve some elements of processing, for example, by working steel or steel alloy into various shapes which can then be welded together to make the chassis of the car. But manufacturing the car involves far more than merely processing those individual pieces.
Similarly, there is some overlap in the meaning of dismantling, maintenance, servicing and repairing. The meaning of 'dismantling', a derivative of 'dismantle', includes 'to strip (any thing) of the necessary equipment, furniture, or apparatus, to unfurnish';[46] 'to deprive or strip of apparatus, furniture, equipment, defences, etc';[47] 'to pull down; take apart; take to pieces'.[48]
[46] Oxford English Dictionary Online.
[47] Macquarie Dictionary Online.
[48] Macquarie Dictionary Online.
The meaning of 'maintenance' includes 'the action of keeping something in working order, in repair, etc';[49] and, as a derivative of 'maintain', 'to keep in existence or continuance; preserve; retain'[50] and 'to keep in due condition, operation, or force; keep unimpaired'.[51]
[49] Oxford English Dictionary Online.
[50] Macquarie Dictionary Online.
[51] Macquarie Dictionary Online.
The meaning of 'servicing', a derivative of 'service', includes 'to perform (typically routine) maintenance or repair work on (a vehicle, machine, appliance, etc);[52] and 'to make fit for service; restore to condition for service'[53] (and in that context refers to servicing a piece of machinery, especially a motor vehicle).[54]
[52] Oxford English Dictionary Online.
[53] Macquarie Dictionary Online.
[54] Macquarie Dictionary Online.
The meaning of 'repairing', a derivative of 'repair,' includes 'to restore (a damaged, worn, or faulty object or structure) to good or proper condition by replacing or fixing parts; to mend, fix;'[55] 'to restore (a material thing…) to good or proper condition by compensating for waste, decay, exhaustion, etc; to renew';[56] 'to restore to a good or sound condition after decay or damage; mend';[57] and 'to restore or renew by any process of making good, strengthening'.[58]
[55] Oxford English Dictionary Online.
[56] Oxford English Dictionary Online.
[57] Macquarie Dictionary Online.
[58] Macquarie Dictionary Online.
So, for example, the maintenance and repair of an item may involve dismantling, servicing and re-assembling its various components. But each of those activities - of dismantling, servicing and assembly - is discrete from the others.
Fourthly, the definition of 'industry' expressly includes activities which would not necessarily fall within the meaning of the primary activities listed, but which are, for the purposes of the Scheme, considered capable of being characterised as ancillary to those activities, namely the storage of goods, sale of goods, administration or accounting connected with a commercial enterprise, or the provision of amenities to employees engaged in the commercial enterprise. The express reference to those activities simply makes clear that they are activities which are capable of being regarded as ancillary to the primary activities listed in the definition of 'industry'.[59]
[59] Cf Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211, 216 (Gibbs CJ, Murphy, Wilson and Brennan JJ agreeing).
Finally, the nature of some of those ancillary activities confirms what is otherwise implicit from the combined terms of the definition of 'industry', namely that the activities encompassed within that definition will be undertaken as part of a commercial enterprise.
Some other contextual features of the use of the term 'industry' in the Scheme should be noted at this stage.
First, the term 'industry' appears in the definition of the 'Industry - Rural' land use classification. The definition of 'industry' in the Dictionary is contained within that part of the Dictionary which refers to 'Land Use Definitions'. That strongly supports the conclusion that the drafter of the Scheme intended that the word 'industry', when used in the context of particular land use classifications, would have the meaning ascribed to it in the Dictionary, subject to the important proviso that that would be so unless the context otherwise required.[60]
[60] Exhibit 1, document 1 (Scheme) cl 1.7.1.
Secondly, as I have already noted, the word 'industry' appears in the title of all of the industry land use sub-classes. That is indicative that each of those use classes was clearly viewed by the drafters of the Scheme as involving 'industry' of particular kinds: Cottage, Extractive, Light, Mining, Noxious, Rural, Service, and General.
Thirdly, the term 'industry' appears in each of the definitions of the industry land use sub-classes, with the exception of 'Industry - Mining'. The definition of the use class 'Industry - General' is especially instructive, in that it means 'an industry' other than the other industry land use sub-classes. The content of that definition most clearly embraces the Scheme Dictionary definition of 'industry' (but then excludes all of the other industry land use sub-classes).
On the other hand, it cannot have been intended that the use of the word 'industry' in each of those use classes would import the entirety of the meaning of the word 'industry' in the Dictionary to the Scheme. To do so would dissolve the distinctions between the various industrial uses of land which the industry land use sub-classes were clearly designed to create.
Other contextual considerations must be taken into account in order to determine whether only some aspects of the Scheme Dictionary meaning of the term 'industry', or alternatively, whether the ordinary meaning of the word 'industry', are imported into the definition of the 'Industry - Rural' land use class.

The meaning of the other terms used in the definition of 'Industry - Rural': 'handling', 'treating', 'processing', 'packing' and 'rural products'

The word 'handling' is a derivative of 'handle', which has a number of meanings. In the present context, those most apt include 'to touch or feel with the hand or hands; to pick up, hold, turn over, etc, in the hand or hands; to use the hands on for some purpose',[61] and 'to deal with, treat; to subject to some process or operation'.[62]
[61] Oxford English Dictionary Online.
[62] Oxford English Dictionary Online.
The word 'treating' when used as a derivative of the verb 'treat', as it is here, has a number of meanings, the most apt of which is 'to "use" (well, ill, properly, reverently, etc)'[63], 'to deal with in order to effect some particular result'[64] or 'to subject to chemical or other physical action; to act upon with some agent'.[65]
[63] Oxford English Dictionary Online.
[64] Oxford English Dictionary Online.
[65] Oxford English Dictionary Online.
As I have already noted, the meaning of the word 'processing', a derivative of the verb 'process' means 'to operate on mechanically or chemically, specifically to preserve or alter (food, foodstuffs, etc.)'; 'to deal with (something), especially according to an established procedure';[66] and 'to convert (an agricultural commodity) into marketable form by some special process'.[67] In the context where the drafter of the Scheme was endeavouring to identify industrial operations which could be undertaken within the General Rural zone of the Scheme, and which would be consistent with the objectives of that zone, the meanings of 'processing' which relate to the conversion, using established procedures, of rural products into marketable forms, are most apt.
[66] Oxford English Dictionary Online.
[67] Macquarie Dictionary Online.
The word 'packing', when used as a derivative of the verb 'pack' has a variety of meanings. In the present context, those most apt include 'to place (foodstuffs or other perishable goods, originally fish) together tightly in a sealable container, esp. for transport, storage, or subsequent sale. Also: to fill (a sealable container) with foodstuffs';[68] 'to place (items of any kind) in a container, esp. for transport;[69] and 'to wrap and tie (goods, clothes, etc.) in cloth, canvas, or other material, so as to form a pack, bale, or parcel; to bundle or parcel up'.[70]
[68] Oxford English Dictionary Online.
[69] Oxford English Dictionary Online.
[70] Oxford English Dictionary Online.

As for the term 'rural products', the meaning of the term 'product' includes 'a thing generated or produced by, or as if by, nature or a natural process'[71] and 'an object produced by a particular action or process; the result of mental or physical work or effort'.[72] The meaning of the adjective 'rural', in the context of this use class, is 'carried out in or involving the country as opposed to a town or city; pastoral, agricultural'.[73]
[71] Oxford English Dictionary Online.
[72] Oxford English Dictionary Online.
[73] Oxford English Dictionary Online.
Furthermore, the term 'rural products' in its context is capable of referring to the inputs or outputs of the activities there described. Consequently, using premises for handling, treating, processing or packing rural products would involve activities such as handling rural products, for example fresh fruit and vegetables, by sorting them according to their quality, into categories for sale to consumers or for sale for use in making other foodstuffs; packing rural products by putting things such as grains, vegetables or honey, into sealed containers for transportation; bundling hay or wool into bales; treating milk, by a process of pasteurisation and homogenisation, so that it is fit for sale for human consumption; and processing fresh fruit by subjecting it to a process of dehydration so as to produce dried fruit (itself a rural product); or processing milk into cream and cheese (themselves rural products).
How does the presence of these terms - handling, treating, processing, packing and rural products - bear upon the meaning which should be attributed to 'industry' in the definition of 'Industry - Rural'? In my view, there are three features of the definition of the 'Industry - Rural' use class which strongly support the conclusion that the drafter of the Scheme did not intend to incorporate into that use class all of the activities which fall within the definition of 'industry'.
First, had the drafter of the Scheme intended to incorporate all of the activities which are included within the definition of 'industry', in addition to the activities expressly referred to in the 'Industry - Rural' definition, it would not have been necessary to refer to 'processing' or to 'servicing' because those terms are already expressly included within the definition of 'industry'.
Secondly, given the breadth of the activities encompassed by the definition of 'industry', the express delineation of activities within the definition of 'Industry - Rural', including activities already falling within the definition of 'industry', suggests that the drafter contemplated that only the activities expressly set out in the 'Industry - Rural' definition, rather than the primary activities included in the definition of 'industry', would be regarded as falling within the scope of that use class.
Thirdly, it is apparent that the drafter sought to limit the conduct of the activities encompassed by the definition to rural products, or to plant or equipment used for rural purposes, rather than to 'goods, products, articles, materials or substances' more broadly. In that respect, the drafter clearly intended that the scope of the activities permitted under the 'Industry - Rural' use class would be narrower than the activities described in the definition of 'industry'.
These considerations strongly support the conclusion that the drafter of the Scheme intended that the primary activities set out in the definition of 'industry' would not be included within the definition of the 'Industry - Rural' land use class unless those activities were expressly included in the latter definition. Relevantly for present purposes, that would mean that manufacturing would not form part of the activities within the scope of the 'Industry - Rural' use class.
If that is correct, what purpose is served by the inclusion of the word 'industry' in the definition of 'Industry - Rural'? In my view, three purposes are served.
First, as I have already mentioned, the reference to 'industry' in the definition confirms that 'Industry - Rural' is intended to be understood as a use class which involves activities constituting a subset of the activities which would ordinarily be included within 'industry', and which are undertaken as part of a commercial enterprise.
Secondly, the reference to 'industry' incorporates the concept of the use of premises for the conduct of the activities described. It is therefore not surprising that the word 'industry' is not used in the definition of 'Industry - Mining'. The latter reflects that the use of land as part of a commercial enterprise to extract minerals from land will not necessarily involve the use of premises for that purpose. (In contrast, the definition of the use class 'Industry - Extractive' does refer to 'industry' because that definition expressly encompasses the treatment and storage of the materials extracted from the land, or the manufacture of products from those materials, which will necessarily involve the use of premises.)
Thirdly, the reference to 'industry' incorporates the ancillary activities referred to in that definition (such as the storage of goods). However, given the context, those ancillary activities must be understood as ancillary to the specified primary activities which involve rural products.

Other contextual considerations

The construction of the words used in the definition of the 'Industry - Rural' land use classification must also take into account the broader context in which those words appear. That broader context includes the fact that those words appear in a definition of a land use, within the context of a local planning scheme which seeks to regulate, in an orderly way, the use of the land which is subject to the Scheme. Relevantly, the objectives of the Scheme include to:
(d)Ensure coordinated and efficient use and development of land within the District and to avoid ad hoc development that would result in land use conflicts, excessive travel and/or transport demand or adverse impacts on the environment;
(e)Protect and enhance the quality of the urban and rural living environments of the District, and to provide for such development as is consistent with the maintenance of efficient services and amenities within the District;
(f)Promote the health, safety, convenience and the economic and general welfare of the community, and to ensure the use and development of land does not result in significant adverse impacts on the physical and social environment.
Furthermore, the broader context also includes the fact that in the General Rural zone, only the use of land for activities falling within the industry land use sub-classes 'Industry - Cottage', 'Industry - Extractive', 'Industry - Mining' and 'Industry - Rural' is capable of being permitted. The use of land in that zone for activities falling with the 'Industry - General' and 'Industry - Light' use classes is not permitted. The 'Industry - Mining' and 'Industry - Extractive' use classes can be put to one side for the moment, because the activities are of a quite discrete kind, namely those concerned with extracting substances from the earth. It is apparent from the definition of 'Industry - Cottage' and in particular from the various criteria set out in paragraphs (a) (e) of that definition, that what is contemplated are small scale commercial enterprises (which occupy a small land area) which produce arts and crafts goods.
If the definition of 'Industry - Rural' were construed so as to include all of the activities falling within the definition of 'industry', including manufacture (which involves the production of goods from raw materials, on a large scale, using machinery or labour) that use of the land would be quite incongruous with the small commercial enterprises contemplated for land in the General Rural zone under the 'Industry - Cottage' use class. Such a construction would also be incongruous with the prohibition on uses falling within 'Industry - General' and 'Industry - Light' on land zoned General Rural.
A further contextual consideration is the objectives of the General Rural zone which applies to the Land. Those objectives include the following:[74]
(a)[to] facilitate the use and development of land for a range of productive rural activities which will contribute towards the economic base of the region;
…
(c)[to] ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character;
(d)[to] ensure that development and land management are sustainable with reference to the capability of land and the natural resource values.
[74] Exhibit 1, document 1 (Scheme) cl 4.2.17.
Counsel for Newco Mills submitted that there was nothing in the objectives pertaining to the various use classes that required a different meaning to be applied to the use of the defined term 'Industry - Rural' than the meaning of the defined term 'industry'. On the contrary, he submitted that the objectives of the use classes supported the incorporation of the definition of 'industry' into the meaning of the use class 'Industry - Rural'.[75]
[75] Ts 8.
As I have already observed, if the definition of 'industry' in its totality was incorporated into each of the industry land use sub-classes that would tend to minimise the differences in the uses of land permitted by those use classes, and would undermine the attempt by the drafter of the Scheme to permit only particular uses of land within the General Rural zone. That would be contrary to the overall objective of the Scheme to ensure the co-ordinated and efficient use and development of land the subject of the Scheme.
Counsel for Newco Mills also submitted that there was nothing in the objectives of the General Rural zone that required the term 'industry' in the definition of the 'Industry - Rural' use class to be given a different meaning from its definition in the Dictionary to the Scheme. I am unable to agree. To construe the definition of 'Industry - Rural' so as to include all of the activities falling within the definition of 'industry,' including 'manufacture,' would tend to undermine the objectives of the General Rural zone itself.
Those objectives clearly indicate that the planning objectives applicable to the General Rural zone seek to strike a balance between facilitating productive rural activities which will contribute to the economic base of the region, on the one hand, while on the other hand, ensuring that the rural amenity and character of the location, and the preservation of the land's capability is not prejudiced. The manufacture of goods is more likely to take place in large premises, such as factories and plants, which are suitable for the production of goods from raw materials on a large scale, using machinery. It is not difficult to envisage that in addition to the visual amenity of such premises, noise and traffic associated with factories and plants conducting manufacturing operations may be more likely to detract from the rural amenity of a location. For that reason, to construe the definition of the use class 'Industry - Rural' broadly, so as to encompass all of the activities included within the definition of 'industry', especially manufacturing, would be more likely to prejudice rural amenity, and to detract from, rather than to promote, the enhancement of the rural character of an area, and in that way would be contrary to the objectives of the General Rural zone.

Is the meaning of 'industry' in the Scheme modified or excluded in the definition of 'Industry - Rural'?

Taking all of these considerations into account, the compelling conclusion is that while the definition of 'Industry - Rural' refers to 'industry', the primary activities falling within the definition of 'industry' are not incorporated into the 'Industry - Rural' definition. Instead, only the activities expressly set out in the definition of the 'Industry - Rural' use class, namely the 'handling, treating, processing or packing [of] rural products' and 'a workshop servicing plant or equipment used for rural purposes' are encompassed by that land use class. However, there is nothing to suggest that the drafter intended that other aspects of the definition of 'industry' namely the concept of the use of premises for the activities in question, or the various activities capable of being regarded as ancillary uses (understood by reference to rural products) - should be excluded from the definition of the 'Industry - Rural' use class.
It follows from that conclusion that on the application of orthodox principles of construction, manufacturing - which is one of the primary activities listed within the definition of 'industry' - does not fall within the activities encompassed within the 'Industry - Rural' use class.
I turn, next, to consider the relevance of the decision in HarvisCapital to the construction of the 'Industry - Rural' use class in the Scheme.

(e) The relevance of the decision in Harvis Capital

What did Harvis Capital decide?

Harvis Capital concerned an application for judicial review of a decision of a Joint Development Assessment Panel (JDAP) to approve a development application for a feed mill and other incidental uses on land at Muchea. The land in question was subject to a different local planning scheme from the Scheme in this case, namely the Shire of Chittering District Planning Scheme No. 6 (SCDPS), together with a local planning strategy and a structure plan. Under the SCDPS, the land in question was zoned 'Agricultural Resource'. The objectives of the Agricultural Resource zone included to preserve productive land suitable for grazing, cropping and intensive horticulture and other compatible productive rural uses in a sustainable manner, to protect the landform and landscape values of the district from despoliation and land degradation, to encourage intensive agriculture, and to allow for the extraction of basic raw materials where it was environmentally and socially acceptable.
As is the case with the present Scheme, the SCDPS set out numerous categories of land uses, some of which were permitted, not permitted, or capable of being permitted only in the exercise of discretion.
The land uses described in the SCDPS as 'Industry' or 'Industry - Light' were not permitted in the Agricultural Resource zone. The definition of the 'Industry' and 'Industry - Light' categories of land use were similar to the definition of 'industry' and the 'Industry - Light' use class in the present Scheme.[76] The SCDPS contained a use class titled 'Industry - Rural' which was in relevantly identical terms to the 'Industry - Rural' use class in this case. Uses of land of that description - relevantly 'an industry handling, treating, processing or packing rural products' - were not permitted other than pursuant to an exercise of discretion by the local government to grant development approval.
[76] The 'Industry' land use was defined in the SCDPS to mean 'premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes facilities on the premises for any of the following purposes –
(a)the storage of goods;
(b)the work of administration or accounting;
(c)the selling of goods by wholesale or retail;
(d)the provision of amenities for employees;
(e)incidental purposes.'
The definition of the 'Industry - Light' land use in the SCDPS was 'an industry:
(a)in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises, do not cause any injury to or adversely affect the amenity of the locality and does not emit pollutants into the air or water;
(b)the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services.'
As is the case with the present Scheme,[77] where a specific use class was mentioned in the SCDPS, it was deemed to be excluded from the general terms used to describe any other use, so that a use properly categorised as 'Industry - Rural' (a specific use) was excluded from the general terms used to describe the 'Industry' use class.
[77] Exhibit 1, document 1 (Scheme) cl 4.4.1 of the Scheme.
The development which was approved was a feed mill comprising the mill itself (a building 44m high, with a total area of just under 4000m²), six large silos, hardstand areas, stormwater pond, waste water evaporation basin, landscaped areas, internal access roads, and a weighbridge and truck wash down facility. It would receive grain and meal for storage and processing, to be milled into pellets for animal feed. The processing of the pellets was to involve whole grains from the silos being rolled and then mixed with meal (such as soya meal, canola meal, meat meal, and blood meal), before being combined with small quantities of other ingredients such as vitamins and minerals, to make a mash. The mash would then be passed through a pellet press to make pellets for animal feed.
The mill was a large operation. It was intended to operate 24 hours a day for 7 days per week and would generate 60 70 truck movements (in and out) per day.
The question for the Court on the judicial review was whether the proposed development the subject of the application for development approval was for an 'Industry - Rural' land use. It was not in dispute that if the proposed development was characterised as one for uses falling within the 'Industry' or 'Industry - Light' classifications, then the JDAP could not approve it (because those uses were not permitted uses in the Agricultural Resource zone).
Counsel for Harvis Capital relied on several decisions of the Tribunal[78] to make three submissions: that something used in both country and urban areas was not a 'rural product'; that for a proposed use to be 'Industry - Rural', inputs to the feed mill would have to be, or substantially be, 'rural products' (that is, something characteristic of the country and something produced by nature or by a natural process); and that a product that may be used for purposes unrelated to agriculture would not be a 'rural product'.[79]
[78] Attwell and City of Albany [2009] WASAT 38; (2009) 61 SR (WA) 25 (Attwell); Ecogrowth International Pty Ltd and City of Swan [2012] WASAT 109 (Ecogrowth); Castle and City of Rockingham [2018] WASAT 98.
[79] Harvis Capital at [75].
However, Allanson J held that to focus on the definition of 'rural product' was not the proper approach to construction of the use class as a whole. His Honour held that the proper approach to construction of the definition of the use class 'Industry - Rural' was to consider the phrase 'an industry handling, treating, processing or packing rural products' and to determine its meaning by reference to the statutory context and purpose. That context included the aims of the SCDPS, the objects of the Agriculture Resource zone, and the wider legislative context, including the local planning strategy.
Justice Allanson referred to five considerations in particular. First, he noted the objectives of the Agriculture Resource zone, the objectives of which included preserving productive land suitable for grazing and other compatible productive rural uses in a sustainable manner. Secondly, his Honour found that there were a wide range of permissible uses in the Agricultural Resource zone, not all of which preserved the land for grazing or other compatible productive uses. Consequently, he concluded that it could not have been intended that the land actually used for a rural industry could continue to be used for productive purposes. Thirdly, Allanson J noted that the definition of 'Industry - Rural' did not refer to the source of the 'rural products' that is, it was not confined to treating or processing things produced on the land or even within the district. Fourthly, the definition of 'Industry - Rural' would not be confined to handling, treating, processing or packing the raw grains and excluding the materials that were described as 'meals', because the evidence was that the various meals were still mill by-products. Fifthly, his Honour noted that the use class 'Industry - Rural' was used in distinction to 'Industry'. He noted that the definitions included terms, such as manufacture, processing and treating, which overlapped. He noted that the definition of 'processing' included 'to treat or prepare by some particular process, as in manufacturing'.

Taking these considerations into account, Allanson J held that[80]
the composite phrase, 'an industry handling, treating, processing or packing rural products' refers to processes which occur in, or may be part of, manufacture. But processing and manufacture are not synonymous. The fact that different products are combined and treated would not necessarily exclude the feed mill operation from being described as treating and processing rural products. But the whole operation described in the application - milling, mixing to mash, manufacture into pellets, crumbling and coating - is more than treating and processing the grains and meals. It is the manufacture of a separate product.
[80] Harvis Capital [86].
Consequently, Allanson J held that the feed mill was not a use that could be approved for land in the Agriculture Resource zone, as it was not within the use class 'Industry - Rural', properly construed.[81]

Is Harvis Capital binding or determinative in this case?

[81] Harvis Capital [87].

The decision in Harvis Capital is distinguishable from this case. It dealt with a different local planning scheme, the relevant terms of which were not entirely the same as those in the present Scheme. Consequently, Harvis Capital is not binding on me in the determination of this case. Furthermore, the nature of the development in Harvis Capital was not the same as the proposed development in this case. The result in that case is therefore not determinative of the result in the present case.
Counsel for Newco Mills submitted that there were three errors in the reasoning of the Court in Harvis Capital so that that case should not be regarded as persuasive, or followed. He submitted that the Court erred in its construction of the definition of the use class 'Industry - Rural' in so far as it excluded from the meaning of that term the meaning of the word 'industry' as defined in the Dictionary to the Scheme. He also submitted that the Court in Harvis Capital did not explain why the word 'industry' in the definition of 'Industry - Rural' was not intended to include the word 'manufacture' when that word was used in the definition of 'industry'.[82] There are two answers to those submissions. First, in HarvisCapital it does not appear to have been argued that the inclusion of the term 'industry' in the definition of the use class 'Industry - Rural' meant that manufacturing was included within the activities which were permitted in the Agricultural Resource zone. Secondly, it was not surprising that that argument was not advanced. In the SCDPS, 'Industry' was a discrete use class. The description of the activities permitted in that use class was in terms similar to the definition of 'industry' under the Scheme. However, the word 'industry' as used in the SCDPS generally was not defined. In that context, there was no reason to suppose that the use of the word 'industry' within a description of the activities encompassed by a particular use class would import into that description all of the activities encompassed within another use class, namely the use class 'Industry' itself.
[82] Applicant's submissions [16].
Nevertheless, there are many similarities between Harvis Capital and this case. The similarities between the key provisions of the SCDPS and the Scheme, and the broad similarities in the proposed developments in each case, mean that Harvis Capital is of some persuasive value in the construction of the terms used in the 'Industry - Rural' use class in the Scheme.
To my mind, the key points to be drawn from the decision in HarvisCapital which are useful in the construction of the Scheme in this case are the following.
First, Allanson J construed the terms in the phrase 'an industry handling, treating, processing or packing rural products' by reference to the statutory context and purpose, including the aims of the SCDPS, the objects of the zoning of the land in question, and the wider legislative context, including consideration of orderly and proper planning. With respect, that was an entirely orthodox application of the principles of construction to which I have already referred.
Secondly, in assessing whether a proposed development is a use of the kind permitted by a land use classification, it is not appropriate to focus on one aspect of the definition of the use class, so that in the case of the 'Industry - Rural' use class, it is not appropriate to focus solely on the requirement of 'rural products'.[83] The activities encompassed by the definition of the use class must be understood by reference to the totality of the definition.
[83] That appears to have been a reference to the applicant's reliance on Attwell and on Ecogrowth.
Thirdly, while accepting that there was some overlap between 'processing' and manufacturing, his Honour held that they were not synonymous. Counsel for Newco Mills was critical of the fact that Allanson J did not give reasons explaining the point at which one could distinguish between 'processing' rural products and 'manufacturing' them, so as to identify how one could conclude that any particular activity would constitute only 'processing' and not 'manufacturing'. With respect, that criticism was misplaced, for two reasons. First, the argument advanced had been that 'processing' included manufacturing, and therefore that the manufacturing of animal feed pellets was permitted by the 'Industry - Rural' use class. However, having concluded that 'processing' was not the same as manufacturing, the question for the court was whether the proposed development involved 'handling, treating, processing or packing rural products'. His Honour held that the proposed development involved more than 'treating and processing' the grains, and amounted to something more, namely the manufacture of a separate product. Secondly, as I have already explained, determining whether a proposed development constitutes an activity permitted by a particular use class requires a judgment to be made. That may not be capable of determination by drawing bright lines of distinction.
Fourthly, his Honour's approach confirms that in assessing whether a particular development application can properly be characterised as an activity of a particular kind (whether as 'treating' or 'processing', or as something else, such as manufacturing) requires the planning authority (and on a review, the Tribunal) to make a judgment, having regard to the entirety of the proposed development, as to whether the proposed development involves an activity of the kind permitted under the land use classification, having regard to the proper construction of the terms used to define that land use classification.
Those aspects of Allanson J's reasoning are entirely consistent with my analysis of the Scheme and its relevant terms, and to that extent the decision provides support for the conclusion I have reached by the application of orthodox principles of construction. Having said that, because the decision in Harvis Capital is not binding on me, and not determinative of the result in this case, it is necessary to proceed, as I have done, by construing the relevant provisions of the Scheme, and applying them to the particular facts of this case.

(f) Why the proposed development does not fall within the classification of 'Industry - Rural' under the Scheme

Counsel for Newco Mills submitted that the Preliminary Issue should be determined by finding that the proposed development should properly be classed as an 'Industry - Rural' use under the Scheme, and was therefore capable of being given planning approval in the Panel's exercise of discretion.[84]
[84] Applicant's submissions [20].
Whether the proposed development falls within the activities described in the 'Industry - Rural' use class depends on whether the proposed development involves any or all of 'handling, treating, processing or packing' rural products.
There is no doubt that the inputs in this case grains and seeds - are rural products. It is not necessary to decide whether the outputs the animal feed pellets and animal muesli are themselves rural products. That is because what is involving in making those products does not constitute merely handling, treating, processing or packing the seeds and grains.
I accept that, if viewed in isolation, the cleaning line (as described above at [16]) could properly be said to involve treating, processing and packing the grains. The grains are treated in the sense that they are subjected to a chemical or physical action, to effect a particular result, namely to remove weeds and stalks, and to leave the grains in an uncontaminated form. They are also packed, in that they are put into bags for transportation. The cleaning line may also be described as involving processing, in the sense that the grains and seeds (rural products, or agricultural commodities) are converted, by being treated in this way, into a marketable form, in that the grains and seeds can then be sold as feed for poultry.
Further, in each of the other lines the mill line and the muesli line the grains are also initially processed, in that they are subjected to physical action, so as to grind them into smaller sizes, or to flatten and steam them. Other processing is involved in producing the animal feed pellets and the animal muesli. The various ingredients from which those products are made are subjected to further processing, by being steamed and compressed into pellets, or by being mixed together, before being packed by bagging them for transportation and distribution.
However, the proposed development as a whole must be considered, rather than individual components of it, in isolation from each other. Having regard to the proper construction of the terms handling, treating, processing and packing, there is no doubt that the proposed development overall cannot be described as involving merely those activities, having regard to the following:
(a)While grains and seeds may be the main ingredients, by volume, in the animal feed pellets and animal muesli, other ingredients, namely either vitamins and minerals, or oil and molasses, are then mixed with the grains and seeds;
(b)the objective in adding other ingredients is to create a product which is different from, and superior for achieving its purpose as feed for particular species of animals, than the individual types of grains or seeds themselves;
(c)the products which are made - the animal feed pellets and animal muesli - are quite different from the grains and seeds which went into them;
(d)the production of the animal pellets and animal muesli would clearly involve the use of machinery on what would be a large scale.
In my view, while the production of the animal pellet and animal muesli involves a number of steps, some of which can properly be described as processing, when viewed as a whole, the proposed development is properly described as involving the manufacture of animal feed products. Consequently, in my view, the proposed development does not fall within the activities permitted by the use class 'Industry - Rural'.

Conclusion

As the proposed development does not fall within the activities encompassed by the use class 'Industry - Rural' and as it was not suggested (nor is there any basis for concluding) that the proposed development fell within the other use classes for which development might be approved, in the exercise of discretion, in the General Rural zone, the proposed development is not capable of approval.
Strictly speaking it is not necessary to determine whether the proposed development would fall within the 'Industry - Light' or 'Industry - General' use classes under the Scheme. However, as that issue formed part of the Preliminary Issue, it can be answered, briefly, as follows. The evidence was not sufficient to permit the conclusion that the proposed development would fall within the definition of the use class 'Industry - Light'. The conclusion follows that the proposed development falls within the use class 'Industry - General' under the Scheme. That being the case, the proposed development is not permitted under the Scheme.
The Preliminary Issue should be answered as follows:
The proposed development is not properly classified as 'Industry - Rural' but rather is properly classified as 'Industry - General' for the purposes of the City of Swan Local Planning Scheme No. 17 and is therefore not permitted on the Land.
In light of the answer to the Preliminary Issue, the review application cannot succeed. The parties should confer about any order or orders which should be made in consequence of that conclusion.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GD
Associate to the Honourable Justice Pritchard
14 DECEMBER 2021