Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal - [2018] TASSC 60

[2018] TASSC 60

COURT: SUPREME COURT OF TASMANIA

CITATION: Raff Angus Pty Ltd v Resource Management and Planning Appeal

Tribunal [2018] TASSC 60

PARTIES:  RAFF ANGUS PTY LTD
  v
  RESOURCE MANAGEMENT AND PLANNING

APPEAL TRIBUNAL
KING ISLAND COUNCIL
KING ISLAND MEAT PROCESS PTY LTD
THE ENVIRONMENT PROTECTION AUTHORITY

FILE NO: 1617/2018
JUDGMENT

APPEALED FROM: Raff Angus Pty Ltd v King Island Council and Ors

[2018] TASRMPAT 13

DELIVERED ON:  29 November 2018
DELIVERED AT:  Hobart
HEARING DATE:  20 September 2018
JUDGMENT OF:  Brett J
CATCHWORDS:

Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Interpretation of performance-based planning scheme – Proposal to locate an abattoir within the Rural Resource Zone – Construction of the relevant performance criteria.

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531, followed.

Aust Dig Environment and Planning [52]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine SC
             Second Respondent:  G Tremayne
             Third Respondent:  D Deller
Solicitors:
             Appellant:  Shaun McElwaine + Associates
             Second Respondent:  Tremayne Fay Rheinberger Lawyers
             Third Respondent:  Dobson Mitchell Allport

Judgment Number: [2018] TASSC 60
Number of paragraphs: 36

Serial No 60/2018
File No 1617/2018

RAFF ANGUS PTY LTD v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL, KING ISLAND COUNCIL,
KING ISLAND MEAT PROCESSING PTY LTD
THE ENVIRONMENT PROTECTION AUTHORITY

REASONS FOR JUDGMENT BRETT J

29 November 2018

This case turns on the interpretation of a performance-based planning scheme. Towards the end of 2017, the third respondent (King Island Meat Processing Pty Ltd), applied to the King Island Council (the Council), the second respondent in this appeal, for a permit to develop and operate an abattoir on King Island. The proposal related to land located within the Rural Resource Zone under the relevant planning scheme, the King Island Interim Planning Scheme 2013. It is common ground that under that scheme the abattoir was categorised within the "resource processing" use class, and hence both the development and use of the abattoir within that zone was discretionary. Accordingly, a permit was required, having regard to s 51 of the Land Use Planning and Approvals Act 1993 (the LUPA Act), and the application for the permit was to be made and assessed in accordance with s 57 of that Act.
On 17 January 2018, the Council granted the permit with conditions. The appellant, who had made a representation to the Council opposing the grant of the permit, appealed to the Resource Management and Planning Appeal Tribunal (the Tribunal) against the grant of the permit. On 6 June 2018, after a contested hearing, the Tribunal, comprised of the Chairperson, Ms Duvnjak and two members, dismissed the appeal. The Tribunal published comprehensive reasons for that decision: Raff Angus Pty Ltd v King Island Council and Ors [2018] TASRMPAT 13.
The appellant has now appealed to this Court against the Tribunal's decision. Under s 25 of the Resource Management and Planning Appeal Tribunal Act 1993, the appeal must be "on a question of law". In essence, the appellant asserts that the Tribunal has incorrectly interpreted the requirements of the planning scheme and hence applied a test which is incorrect in law with respect to the exercise of the discretion concerning the grant of the permit. If that assertion is made out, the resultant error is clearly one of law.

The planning scheme

The scheme is in the predictable format of a performance-based scheme. A proposed use or development must be categorised into a defined use class. That categorisation will then determine whether the use or development requires a permit in the zone within which it is proposed to be located, and, if it does, whether the permit must be granted (permitted), must not be granted (prohibited), or whether the planning authority has a discretion to refuse or permit the use or development (discretionary). A table is provided for each zone, setting out which use classes are permitted, discretionary or prohibited, or in respect of which no permit is required. The zone provisions also contain scheme standards. Those standards may prescribe acceptable solutions, a permitted way of satisfying a scheme standard, or performance criteria. A use or development which falls within a use class which is specified in the applicable table as being discretionary, or which relies upon performance criteria to comply with an applicable standard, is discretionary.
As already noted, the proposal is to locate the abattoir within the Rural Resource Zone. The purpose of the zone is described at cl 26.1.1.1 as follows:
"26.1.1.1To provide for the sustainable use or development of resources for agriculture, aquaculture, forestry, mining and other primary industries, including opportunities for resource processing."
The abattoir falls within the "resource processing" use class. That use class is defined by the scheme as:
"use of land for treating, processing or packing land or animal resources. Examples include an abattoir, animal saleyard, cheese factory, fish processing, milk processing, winery and sawmilling."
Perhaps predictably, given the statement of zone purpose, resource processing falls within the discretionary use class in this zone. Accordingly, there is a general discretion to approve or refuse the use and development of the abattoir. The exercise of discretion will depend, in part, upon the proposal's capacity to meet the applicable scheme standards, as expressed in the performance criteria (or acceptable solutions if provided) for each: Clarence City Council v Resource Management and Planning Appeal Tribunal [2018] TASSC 41. In respect of this proposal, the standard contained in cl 26.3.1 was applicable because the proposal involved the location of a discretionary non-residential use on rural resource land.
The objective of the standard in cl 26.3.1 makes it clear that its purpose is to minimise the unnecessary loss of land "of significance for sustainable primary industry", and "unreasonable conflict or interference to existing or potential primary industry use, or by other land use". There is no acceptable solution and, accordingly, the exercise of discretion must be assessed against the relevant performance criteria. As context will be important in the construction of the relevant part of the performance criteria, it is useful to set out that performance criteria in full:

"Performance Criteria

P1

Other than for residential use, discretionary permit use must –

(a) be consistent with the local area objectives;

(b) be consistent with any applicable desired future character statement;

(c) be required to locate on rural resource land for operational efficiency –

(i)      to access a specific naturally occurring resource on the site or on adjacent land in the zone;

(ii)     to access infrastructure only available on the site or on adjacent land in the zone;

(iii)    to access a product of primary industry from a use on the site or on adjacent land in the zone;

(iv)     to service or support a primary industry or other permitted use on the site or on adjacent land in the zone;

(v)    if required –

a    to acquire access to a mandatory site area not otherwise available in a zone intended for that purpose;

b    for security;

c    for public health or safety if all measures to minimise impact could create an unacceptable level of risk to human health, life or property if located on land in a zone intended for that purpose;

(vi)     to provide opportunity for diversification, innovation, and value-adding to secure existing or potential primary industry use of the site or of adjacent land;

(vii)    to provide an essential utility or community service infrastructure for the municipal or regional community or that is of significance for Tasmania; or

(viii)   if a cost-benefit analysis in economic, environmental, and social terms indicates significant benefits to the region; and

(d) minimise likelihood for –

(i)      permanent loss of land for existing and potential primary industry use;

(ii)     constraint or interference to existing and potential primary industry use on the site and on adjacent land; and

(iii) loss of land within a proclaimed irrigation district under Part 9 Water Management Act 1999 or land that may benefit from the application of broad-scale irrigation development."

It is the interpretation and operation of this performance criteria, and in particular subpar(c), which is in issue in this case.

The Tribunal's decision

Although the Tribunal was exercising a jurisdiction which required it to consider the exercise of discretion afresh, the dispositive issues were framed by the appellant's grounds of appeal. These grounds contended that the proposal was unable to comply with the requirement contained in cl 26.3.1 and placed in issue each provision of the performance criteria, as well as asserting inconsistency with the objectives of the requirement. The Tribunal addressed each provision and concluded that the proposal met the objectives and each relevant aspect of the performance criteria.
The Tribunal concluded that the proposal was not required to locate on rural resource land for any of the purposes specified in subpar (c)(i) to (vii). It also concluded that the proposal satisfied the requirements of subpar (d). Those conclusions are not challenged in this appeal.
The Tribunal's conclusions with respect to the meaning and application of subpar (c)(viii) are the subject of challenge by the appellant. In particular, the Tribunal's approach to the interpretation of that provision is set out in the following impugned passage of the Tribunal's reasons:
"95The opening words of Subparagraph (c) do not mesh well with part (viii) when read together as follows.
'The Proposal must "be required to locate on Rural Resource land for operational efficiency if a cost-benefit analysis in economic, environmental and social terms indicates significant benefits to the region".'
96Parts (i) to (vii) of Subparagraph (c) commence with the words 'to' and relate to the accessing of a resource, infrastructure, product or site area, or to provide for the opportunities set out in (vi) and (vii). Part (viii) of Subparagraph (c) is differently drafted. It provides that the proposal must be located on rural resource land for operational efficiency if a cost-benefit analysis in economic, environmental and social terms indicates significant benefits to the region (emphasis added). 'If' is a conjunction. It means 'granting or supporting that' or 'on condition that' .
97While awkwardly phrased, Subparagraph (c)(viii) appear to provide that if a cost-benefit analysis in economic, environmental and social terms indicates significant benefits to the region, then the proposal must locate on rural resource land for operational efficiency. On that interpretation, if the cost-benefit analysis of Ms Witte so indicates, the Proposal satisfies (c)(viii). The evidence is that a cost-benefit analysis with respect to the Proposal indicates significant benefits to the region." [Footnote omitted.]
At [103], the Tribunal confirmed its preference for the interpretation set out in this passage.
The requirement in subpar (c) that the proposal "be required to locate on rural resource land for operational efficiency" was dealt with by the Tribunal in an earlier part of its reasons: [46]-[64]. In those reasons, the Tribunal:
·     Analysed the evidence of the three expert planners who provided evidence to it.
·     Noted that there are five zones within the scheme in which resource processing can be contemplated.
·     Noted that planners, to a greater or lesser extent, had considered whether the proposal could appropriately be located in other zones. The Tribunal noted in particular that the Council planner, Mr Shepherd, had undertaken "a detailed assessment of the alternative zones available for" the proposal. This comparison supported the choice of the Rural Resource Zone proposal, although at [60], the Tribunal conceded that the comparison had not been expressly based on an assessment of "operational efficiency".
·     The Tribunal noted the conflicting evidence of the planner called by the appellant, Mr Boardman, which suggested that the General Industrial Zone was the preferred location for an abattoir.
·     The Tribunal also noted that the proposal had been the subject of detailed analysis against strategic plans and land use strategies. The site analysis had included "acoustic, traffic and air quality assessment and amenity impact".
·     Ultimately, the Tribunal concluded as follows:
"59The Tribunal must consider whether the location of the Proposal is suitable having regard to the performance standards in Clause 26.3.1. The Tribunal is not required to consider whether other specific sites may offer a preferable alternative. Specific considerations involving a detailed assessment of alternative sites would not be appropriate as only the site of the Proposal has been subject to an opportunity for persons who might be affected to make a representation to Council. While the Tribunal accepts that the performance criteria requires a consideration of the requirement to locate on rural resource land for operational efficiency, such a consideration, in the Tribunal's view, does not require the Second Respondent to identify and demonstrate the operational efficiencies of such a proposal in different zones for the purposes of comparison. Nor a comparative analysis of alternative sites within the Rural Resource Zone.
60The Tribunal notes that Mr Shephard conceded in cross examination that his analysis of potential alternative zones where use as an abattoir was discretionary, was limited to suitability rather than an assessment of 'operational efficiency'. In the Tribunal's view, suitability of the site is relevant to the demonstration of 'competency in performance' of the abattoir. The evidence provided by Mr Shephard and Ms Riley was clearly relevant to the achievement of operational efficiency. Further, there is no evidence before the Tribunal that greater operational efficiency could be achieved at any alternative site. A question that might arise is why the Second Respondent would deliberately choose the Rural Resource zone for its Proposal if significantly greater operational efficiency (and thereby cost savings) was likely to or could be achieved by the development being located in a different zone.
61The Tribunal prefers the evidence of Ms Riley and Mr Shephard with respect to this issue. Mr Shephard's evidence, in particular, contained a comparison of the site of the Proposal with the area zoned General Industrial and identified specific reasons for the suitability of the site of the Proposal.
...
64The Tribunal finds that the evidence referred to establishes that the Proposal was required to locate on the rural resource land for operational efficiency reasons in a general sense."

The asserted error

The gravamen of the grounds of appeal is that the Tribunal has misconstrued the requirements of subpar (c)(viii) and, as a result, applied an incorrect test with respect to the exercise of the discretion. As developed in argument, the appellant's essential submission is that to comply with subpar (c)(viii), it must be demonstrated by the cost benefit analysis referred to therein, that significant benefits to the region will occur because the proposal has been located on Rural Resource land for operational efficiency. In other words, in practical terms, if the analysis demonstrates that those benefits will occur irrespective of whether the proposal is located on Rural Resource land or in some other zone, then the link required by subpar (c)(viii) between the proposal and the zone, has not been established, and the performance criteria has not been met. According to senior counsel for the appellant, Mr McElwaine SC, this linkage accords with the plain wording of the provision and is consistent with the context of cl 26.3.1, in that it limits approval to those proposals which require location on Rural Resource land for one of the purposes specified in subpar (c), hence avoiding the unnecessary conversion of agricultural land to other uses, including resource processing.
Mr McElwaine argues that the Tribunal did not construe the provision in this way and hence did not assess the proposal against the correct test. He points, in particular, to the following aspects of the decision:
(a)At [97], the Tribunal opted for an interpretation whereby "... if a cost-benefit analysis in economic, environmental and social terms indicates significant benefits to the region, then the proposal must locate on rural resource land for operational efficiency". Under that interpretation, the only requirement was a demonstration of significant benefit to the region, irrespective of the location of the proposal. It is submitted that this interpretation ignores the linkage required between the location of the proposal in the zone and the regional benefits.
(b)Although it was conceded that the Tribunal had earlier determined that "the proposal was required to locate on Rural Resource land for operational efficiency reasons in a general sense", the Tribunal had not assessed this question against a test which required a link between the regional benefits arising from the cost benefit analysis and the location of the proposal on Rural Resource land. Mr McElwaine submits that the Tribunal had erroneously only considered general reasons relevant to the operation itself as to why there might be some benefit from locating on Rural Resource land.
(c)At [103] the Tribunal stated that even if the test set out in [97] was incorrect, it was satisfied that the evidence supported a finding that the performance criteria had been met. Mr McElwaine criticises this alternative position on the basis that it is not supported by reasons and, in any event, does not specify the alternative interpretation against which the compliance with the performance criteria has been tested.
The position of the third respondent, as submitted by its counsel, Mr Deller, is that the provision in fact imposes two discrete and unconnected tests of performance, which are:
(a)that the proposal must be required to locate on Rural Resource land for operational efficiency; and
(b)that a cost benefit analysis in economic environmental and social terms indicates significant benefits to the region from the proposal.
On this basis, it is argued that it is not necessary to be satisfied that the regional benefits are derived from the location of the proposal on Rural Resource land. In other words, Mr Deller disputes the requirement for the linkage contended for by Mr McElwaine. Mr Deller submits that the Tribunal approached these questions discretely and therefore correctly.
On behalf of the Council, Mr Tremayne submits that the provision should be read down so that the words "for operational efficiency" have no effect. He argues that these words import concepts foreign to planning considerations and are not necessary to give efficacy to the operation of the provision. If the words were not included, the provision would make perfect sense and give effect to the purpose of the provisions within the context of the planning scheme. For example, in relation to the provision under consideration, the effect, under the interpretation contended for by Mr Tremayne, would be that the proposal must "be required to locate on Rural Resource land ... if a cost benefit analysis in economic environmental and social terms indicates significant benefits to the region". Under this formulation, there would be no requirement to demonstrate that the proposed regional benefits arise from the location of the proposal on Rural Residential land. Once again, the linkage contended for by the appellant would be unnecessary.

Discussion

A planning scheme should be interpreted in accordance with the ordinary rules applicable to the interpretation of legislation, with the possible exception that the purposive approach specified in the Acts Interpretation Act 1931, s 8A, is not applicable. See AAD Nominees Pty Ltd v Resource Management and Planning Appeal Tribunal [2011] TASFC 5, per Blow J (as he then was) at [10]. The starting point of any process of statutory construction is the plain and ordinary meaning of the text, read in the context of the surrounding provisions and the legislative scheme. The aim of the process is to derive from the statutory words read in context, the meaning "that the legislature is taken to have intended them to have": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ.
In Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531, Gageler and Keane JJ expanded on the relevance and effect of context in the process of statutory construction:
"[65]Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always.' Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
[66]Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies. [Footnotes omitted.]
Context derived from the overall structure and other relevant provisions of a planning scheme, is particularly important in the construction of a performance criterion in a performance-based planning scheme. The provisions under consideration in this case demonstrate attributes which are not unusual in such schemes. Such provisions often appear to be drafted by persons without legal training. They manifest an attempt to codify and establish general standards for the purpose of regulating an almost unlimited range of potential uses and developments. The words used are often intended to apply qualitative tests which require an evaluative judgment against standards which are nebulous, and often conceptual and/or aspirational. This uncertainty is inherent in the nature of planning. The majority of planning controls are intended to confine and regulate development in a general way, without imposing unnecessary restriction and prescription. This is typically so in respect of performance criteria contained within a performance-based scheme. Acceptable solutions, where provided, are by their nature, usually much more certain and quantifiable.
Accordingly, literal or grammatical meanings will, more often than not, not properly convey the meaning of the text used in performance criteria. The comments of Gageler and Keane JJ quoted above are apposite.
In my view, the objectives stated in cl 26.3.1 provide an important aspect of the context within which the meaning of the text used in the performance criteria must be considered. It is clear that the overall purpose of the provision is to limit the location of discretionary non-residential use on Rural Resource land in order to minimise the loss of agricultural land or unreasonable conflict or interference with land used for that purpose. Accordingly, the performance criterion sets the parameters of limitation of uses so as to ensure that those uses and developments are both consistent with the agricultural use of Rural Resource land and reasonably located in that zone. Hence, subpar (c) provides eight separate circumstances, read disjunctively, within which the use or development must fall before it will comply with the performance criterion. The intended operation, in my view, is not to set an ironclad restriction on what can be located in the zone, but rather to limit acceptable uses to those which can demonstrate a reasonable basis for location within the zone, having regard to the categories specified in subpar (c).
The only sensible way in which the meaning of each circumstance can be derived is for it to be read cohesively with the introductory words. For example, in respect of subpar (c)(i), the requirement will read as follows:
"be required to locate on rural resource land for operational efficiency, to access a specific naturally occurring resource on the site or on adjacent land in the zone."
Applying this configuration to subpar (c)(viii), the requirement reads:
"be required to locate on rural resource land for operational efficiency, if a cost-benefit analysis in economic, environmental, and social terms indicates significant benefits to the region."
This was the starting point for the construction analysis of the Tribunal. The Tribunal also noted the contrast between the use of the word "to" as a linkage in respect of each of the other subparagraphs of subpar (c), and the word "if" as the appropriate linkage word in respect of subpar (c)(viii). The use of the word "to" is a reference to the purpose or utility of the proposed use, whereas the word "if" suggests a precondition.
None of this is controversial or problematic. The difference between the parties is whether the cost benefit analysis demonstrating regional benefits stands alone as a pre-condition for location of the use in the zone, or whether the production of those benefits must flow exclusively from the location of the use in the zone. There is also the question of the effect of the words "for operational efficiency".
There is no doubt that those words, taken alone, are incongruous with the balance of the provision. They impart a standard which must be subjective to the particular use, and incapable of any form of precise quantification or definition. "Operational efficiency" can only be measured against the subjective standards of the particular development. The phrase has no real meaning within a planning context, and certainly not in respect of a performance criterion purporting to constrain development.
The words do, however, derive some sensible meaning if the relevant provisions are interpreted as linking the purpose or pre-condition prescribed by the particular criterion to the location of the proposal on Rural Resource land. If that is the case, then the use of those words suggests that it must be demonstrated that there is some efficiency or advantage to be gained in respect of the relevant purpose or condition, from the location of the development within the zone. Hence, using subpar (c)(i) as an example, an evaluative assessment would be required as to whether there is "operational efficiency" in locating the development in the Rural Resource Zone for the purpose of accessing a specifically naturally occurring resource on the site or adjacent land in the zone. Such an assessment might reveal that a development which purports to locate itself in the zone for that purpose cannot achieve satisfactory operational efficiency in giving effect to that purpose, and hence would not satisfy the performance criterion. This approach to the construction of the words in question is consistent with the context provided by the fact that the words are intended to describe evaluative standards applied as performance criteria to proposed uses. The words are intended to inform an evaluative judgment made for the purpose of the exercise of a discretion, and not prescriptive standards capable of precise definition.
Consistent with this approach, it is also possible to construe the words "must be required to locate" in an appropriate way. In my view, those words do no more than provide that the development will demonstrate operational efficiency for the purpose or condition prescribed in the relevant subparagraph, by locating within the zone. If the provision is read in this way, then the Tribunal was correct to hold that it is not necessary to demonstrate that the purpose or benefits referred to in the relevant subparagraph cannot be achieved in any other zone. Such a requirement would be inconsistent with the general application of planning principle, and also with the application of performance criteria within a performance-based scheme. It would create an almost impossible task for the planning authority, and would be incapable of sensible application, in any event. A development which might be capable of location in another zone could for many reasons be less suitable from a planning perspective in that zone than in the Rural Resource Zone. A sensible interpretation of this requirement, within context, is that the specific proposal must be demonstrated to achieve appropriate benefits, in the sense of operational efficiency, for the purpose prescribed in the relevant subparagraph. An evaluative assessment about that question will then inform whether the proposed use has complied with that aspect of the performance criteria. A development which fails to so comply with any of the subparagraphs will fail the test prescribed by the performance criteria, and hence not achieve a positive exercise of the discretion. However, a proposed use which does demonstrate operational efficiency in achieving one of the specified purposes will comply with the criteria and, if all other standards have been met, will achieve a positive exercise of discretion. The result is that only uses which fit well in the zone for a specified purpose will take up land which would otherwise be used for agriculture. This represents a reasonable balance between use of land for agriculture and other uses, including "opportunities for resource processing."
On the basis of this interpretation, subpar (c)(viii) should be construed as requiring the proposal to demonstrate that its location in the Rural Resource Zone will, upon a cost benefit analysis in economic, environmental and social terms, achieve significant benefits for the region. In other words, the assessment must relate to the proposed development, in its specific location in the Rural Resource zone, and consider the benefits for the region from the development so located. This does not require demonstration, as submitted by Mr McElwaine, that the relevant regional benefits are derived exclusively from the location of the development in the zone and will not be derived otherwise. Such a requirement does not fall from the ordinary meaning of the text, and would impose the impossible and unrealistic standard already described. In particular, it would require a proponent to demonstrate that the proposal could not be satisfactorily located anywhere else within the municipality. I reject that interpretation. The proper operation of the criteria is that it must be demonstrated by the specified cost benefit analysis that the use, located within the Rural Resource Zone, will efficiently achieve the relevant regional benefits. The fact that those benefits might also be achieved in another zone is irrelevant. However, if the development will not achieve those benefits at all, or cannot do so efficiently within the Rural Resource Zone, then the test will not have been met, and rural land will not be unnecessarily converted to a use which is not within the contemplation of the performance criteria.
Although the Tribunal did not frame its construction of the provision in this way at [97], an analysis of other parts of its reasons demonstrates that it did understand and apply the correct test. The evaluative assessment required by subpar (c)(viii) related to the outcome of the cost benefit analysis, and in particular whether the development would achieve significant regional benefits in its proposed location within the Rural Resource Zone. Although at [59] and [60] the Tribunal was considering the question of operational efficiency in isolation, it did so on the basis that it was assessing "competency in performance" of the abattoir on a site-specific basis, and without direct comparison to other zones. This was not inconsistent with the required assessment, although the assessment was not complete until it had been demonstrated that the development, so located, would achieve the requisite regional benefits. However, the Tribunal specifically considered this question within the context of the cost benefit analysis at [99]-[100]:
"99Ms Witte was the only expert to give evidence on the economic impact of the Proposal. Her evidence was that significant economic benefits would flow to the industry with respect to efficiencies and cost reduction and the island itself. No other evidence with respect to cost-benefit analysis was before the Tribunal. Ms Witte was subject to very little cross examination. Whilst Ms Witte did concede in cross examination that an abattoir of this scale located anywhere on King Island would produce benefits as contemplated by part (viii). It is apparent from the cost-benefit analysis undertaken by Ms Witte that her analysis was specific to the Proposal which is the subject of this appeal. The cost-benefit analysis considered the cost of construction on site, the operational costs (which include freight), and the cost of the design and construction phase (which would be approximately $53.5 million over a period of 18 months). Further, her analysis considers direct operational costs based on the 10,000 tonnes regulatory limit for the abattoir, as approximately $9.5 million per annum, with this figure including, processing, packaging, plant, equipment, maintenance, sea freight, utilities, staff wages, waste management and other expenses. Whilst it is apparent that some of those expenses would be relevant to any abattoir proposed on King Island, many of these costs must be specific to the Proposal on this site. In the Tribunal's view, it is reasonable to conclude that the cost benefit analysis undertaken as required by the Scheme, can only be specific to the site. An alternative site might have a different design and structure, construction costs, require a different waste management regime, air quality controls, and different transport needs. All these variables would or could be impacted by such factors such as location, topography and environmental factors.
100While the cost-benefit analysis was undertaken by Ms Witte to assess the development of an abattoir on King Island, that analysis incorporates the cost of the construction, operational costs of the Proposal and are entirely project and site specific. The Tribunal does not accept that Ms Witte's evidence must establish that benefits to the region must only flow if an abattoir of this scale is established on rural resource land. It is sufficient if her evidence is that, incorporating site specific considerations, the benefits identified will flow to the region. It is on the basis of the site specific considerations that Ms Witte concludes that the proposed project generates significant net benefits to the community described as follows:
'a)The proposed project generates significant net benefits to the community:
·   There is a strongly positive BCR. For every dollar invested, there is a return to the community of $2.54.
·   The project is expected to generate a NPV of $226 million which is positive and significant.
·   The abattoir is funded by private investment and no government subsidies are involved.
·   The benefits accrue to local farmers, the King island community and the private investor.
·   However, the costs accrue to the private developer. The farmers and the King Island community bear minimal costs only.
·   The investment enables an increase in the number of workers on the Island by 9%15. This will enable more working age households to live on King Island contributing to the long term sustainability of the community and its economy.
b)Significant monetised benefits are generated by increased local economic value-added, reduced transport costs and increased returns to the farmers.
c)Important unquantified benefits are the increase in working age households living on King Island, the improved local business confidence and improved animal welfare outcomes. The unquantified benefits outweigh the small unquantified environmental cost and small loss of productive agricultural land.
d)The EIA estimates construction of the abattoir will directly support 40 full time equivalent temporary jobs during construction, and a further 59 flow-on jobs, in the King Island economy (for a total of 99 FTE jobs). King Island, in total, will gain $16.4 million in value added from this construction activity.
e)After completion, the EIA estimates that operations of the facility will directly support 64 full time equivalent jobs. There will also be an additional 77 jobs supported in the King Island economy via the flow-on effects (for a total of 141 FTE jobs). King Island will gain $24.0 million in value-added to GRP per annum.
f)The results of the CBA and supporting EIA indicate that the proposed abattoir will have significant benefits to King Island'."
I am satisfied that in these paragraphs the Tribunal applied the correct test required by subpar (c)(viii). The conclusion of the Tribunal was that a cost benefit analysis demonstrated that the abattoir, in its location in the Rural Resource Zone, will efficiently achieve significant benefits for the region. The assessment by the Tribunal was based on the cost benefit analysis undertaken by Ms Witte. This assessment demonstrates the proper application of the provision. The Tribunal accepted that Ms Witte's assessment had demonstrated that when regard was had to the benefits which would flow from the development, which included benefits derived from its location within the zone, that it achieved significant regional benefits. The costs relevant to the analysis were costs specific to the site and impacted by "location, topography and environmental factors" derived from the site. Hence, there is operational efficiency flowing from the location of the development within the zone, which will achieve the relevant benefits. A development which can so demonstrate compliance with that criteria has earned its place within the zone, and this sits comfortably with the planning objectives of the provision and the scheme, including the limitation of uses to those which can demonstrate such benefits. It is immaterial that the same or similar benefits could also be derived from locating the proposal in another zone.
This was the test applied by the Tribunal. In my view, it was the correct test, and the Tribunal did not fall into error in its interpretation or application of the relevant provision.
It follows that the grounds of appeal are without merit. The appeal is dismissed.