SNOWDALE HOLDINGS PTY LTD and CITY OF SWAN
[2015] WASAT 88
•19 AUGUST 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SNOWDALE HOLDINGS PTY LTD and CITY OF SWAN [2015] WASAT 88
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: 15 MAY 2015
DELIVERED : 19 AUGUST 2015
FILE NO/S: DR 117 of 2014
BETWEEN: SNOWDALE HOLDINGS PTY LTD
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Enforcement proceedings - Notices and directions - Commercial egg production on rural land - Poultry farm - Direction to cease use of specified premises for storage and production - Import of eggs from a related commercial entity to make use of spare capacity following reduction in number of birds on site - Whether such additional activity creates separate land use - Construction and interpretation of planning approvals - Identification of use class - Whether indications in planning application for use as poultry shed fixed approval for all time - Whether such indications were incorporated into planning approval - Whether approval only regularised building and structures and some activities on site - Tribunal holding that approved use was to be interpreted broadly and liberally - Use was intensive agriculture as poultry farm limited to commercial egg production - Tribunal holding that indications in planning application were not incorporated into final instrument of approval - Tribunal holding that production and storage were incidental to approved use - Tribunal holding that import of eggs for processing on site did not create a separate land use - Review allowed and direction set aside - Costs in future such cases - Words and Phrases: 'poultry farm'; 'incidental'
Legislation:
City of Swan Local Planning Scheme No 17, cl 4.3.3, cl 8.1, cl 11.5
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 214(2)
Shire of Swan Town Planning Scheme No 9
Result:
Application for review allowed
Summary of Tribunal's decision:
Snowdale Holdings Pty Ltd is the owner and operator of a large commercial poultry farm, producing eggs for domestic consumption. The farm is located in Bennett Springs in the City of Swan.
In early 2012, Snowdale obtained from the City of Swan retrospective planning approval which in effect regularised various structures and certain activities on the site. Snowdale failed, however, to obtain approval to increase significantly (from 24,000 to 90,000) the number of egglaying birds on site. The application for planning approval was an extensive document setting out, amongst other things, the site's planning history and all of the buildings and structures on site. The application asserted, with respect to the poultry farm land use, that 'this use has not changed since the original grant of approval by the City'.
The City of Swan served a written direction under the Planning and Development Act 2005 (WA) requiring Snowdale to cease using two of its large poultry sheds for various storage and production purposes associated with egg production. In addition, the City was concerned that a significant number of eggs (about 95,000 per day) were being trucked in one or two times a day from another of Snowdale's commercial poultry farms. These eggs were sorted, graded and packed on the Bennett Springs site as an integrated commercial activity with the existing egg production on site.
The City alleged that all of these activities were unlawful either because the 2012 approval incorporated a limitation that the sheds would only be used to house poultry (as indicated in the application and plans) or because the activities were not 'incidental' to any approval that existed for the site. The City's short instrument of planning approval referred to a grant of 'retrospective approval to the construction of the associated buildings at the existing poultry farm'. It did not refer to the application, but it did refer to an operational management plan.
Snowdale sought a review of the direction, arguing that the 2012 approval did not incorporate or otherwise impose any limitation on the use of the sheds as the City had asserted. Snowdale submitted that the main purpose of the 2012 approval was to regularise the various buildings and structures on the site. In any case, the indications in the application, such as they were, were premised on housing 90,000 birds on site (which did not eventuate). Accordingly, there was now unused productive capacity on site.
The Tribunal agreed with Snowdale and set aside the direction.
The Tribunal canvassed the many cases in the Tribunal and elsewhere which rejected the view that an indication or an assertion in an application for planning approval, which was not translated into a properly drafted restriction (such as may be found in a condition) could limit the approved use of the land.
The Tribunal also discussed the cases that demonstrated that land use approvals were to be interpreted at a level of generality which was necessary and sufficient to cover the 'individual activities, transactions and processes' carried on at the relevant date, not to authorise those specific activities. Further, land use decisions should be generally formulated and interpreted in a liberal and practical way with restrictions to be expressed 'fairly'; any ambiguity 'should be construed in a manner which placed the least burden on the land owner'.
However, the Tribunal did not find it necessary, on this occasion, to consider a New South Wales case that had suggested that approvals should also not be interpreted in a way that 'would be contrary to common sense and in defiance of commercial reality'.
Here, the Tribunal found that the sorting, grading, packaging, and storage of eggs (and associated activities) were incidental to the approved use as intensive animal husbandry, on the scale indicated, for an existing poultry farm designed for commercial egg production.
It was also held by the Tribunal that making use of extra capacity on site for additional egg production from a related commercial entity was an ancillary, incidental or relevantly subordinate use of the land. No relevantly separate land use arose out of that activity, given the nature of the site and the approved use and activities for the site.
The Tribunal indicated that in future cases the question of costs might arise if Local Governments, in the light of the wellestablished principles applied in this case, took an unjustified and perhaps unduly narrow or formalistic view of the extent of their land use decisions (including what may be properly regarded as sitespecific incidental use). Restrictions on approved land use were to be achieved by way of properly formulated approvals and conditions, not uncertain implications to be derived from voluminous planning applications lodged by an applicant.
The review was allowed and the direction was set aside.
Category: A
Representation:
Counsel:
Applicant: Mr P McGowan
Respondent: Mr P Gillett
Solicitors:
Applicant: Hotchkin Hanly
Respondent: McLeods
Case(s) referred to in decision(s):
AAA Egg Company Pty Ltd and Shire of Gingin [2013] WASAT 149
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Clay and City of Nedlands [2012] WASAT 193
Clay and City of Nedlands [2012] WASC 402
Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Kin Kin Community Group Inc v Sunshine Coast Regional Council [2010] QPEC 144
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Lynch and Town of Victoria Park [2014] WASAT 162
Maybury v Weston Aluminium (Producers) Pty Ltd [1998] NSWLEC 17
Palmer v Surf Coast Shire Council [1999] VCAT 463
Perth Vet Emergency Pty Ltd and City of Stirling [2013] WASAT 204
Rohrlach v City of Unley [2011] SAERDC 19
Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5; [2007] QPELR 334
Tamarix Pty Ltd v Greater Dandenong City Council [2011] VCAT 2182
Transpacific Industries Group v Ipswich City Council [2012] QPEC 69
Vestey v Warrnambool City Council [2008] VCAT 963; (2008) 160 LGERA 204
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Snowdale Holdings Pty Ltd (applicant or Snowdale), runs a large commercial poultry farm, producing eggs, located at No 60 (Lot 600) Cheltenham Street, Bennett Springs in the City of Swan (subject land).
On 13 March 2014, the respondent, the City of Swan (respondent or City) issued to Snowdale a 'written direction' under s 214(2) of the Planning and Development Act 2005 (WA) (PD Act) (Direction) aimed at stopping the following actions (described collectively as 'The Development') on the subject land:
The use of a structure known as shed 2 [on the subject land] for the purpose of a workroom, where the previously packaged cartons are palletised for transport; and
The use of a structure known as shed 3 [on the subject land] to store a variety of new egg cartons, boxes and trays.
Section 214(2) of the PD Act provides as follows:
If a development, or any part of a development, is undertaken in contravention of a planning scheme … the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part of the development that is undertaken in contravention of the planning scheme[.]
The alleged contravention of a planning scheme, set out in the Direction, was as follows:
The Development is being carried out without the Development Approval of the City having been sought and obtained and is thereby in contravention of clause 11.5.1(b) of the [City of Swan Local Planning Scheme 17 (LPS 17)].
Clause 11.5 of the City of Swan Local Planning Scheme No 17 (LPS 17) provides as follows:
11.5PERSON MUST COMPLY WITH PROVISIONS OF SCHEME
11.5.1A person must not
(a)contravene or fail to comply with the provisions of the Scheme;
(b)use any land or commence or continue to carry out any development within the Scheme area -
(i)otherwise than in accordance with the Scheme;
(ii)unless all approvals required by the Scheme have been granted and issued;
(iii)otherwise than in accordance with any conditions imposed upon the grant and the issue of any approval required by the Scheme; and
(iv)otherwise than in accordance with any standards laid down and any requirements prescribed by the Scheme or determined by the local government under the Scheme with respect to that building or that use.
(v)contrary to any directive issued under section 214 of the [PD Act].
Under cl 8.1 of LPS 17 any 'development' (which is defined to mean 'development or use of any land') of the subject land 'requires the prior approval of the local government'. A person 'must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part 9 [of LPS 17]'.
Further details of the planning history of the subject land are given below in the 'agreed facts'. For convenience of reference, I record at this point the following particulars relating to the terms of the Direction which were supplied by the respondent's solicitors to the applicant's solicitors by letter dated 2 April 2014 (emphasis added):
We are instructed by the City that the shed described as 'Shed 2' in your client's application dated 9 March 2011 for retrospective planning approval for existing structures and an increase in bird numbers at the Property (Retrospective Application) is being used for the sorting, grading and packing of eggs. To facilitate that use, the interior of Shed 2 has recently been lined with cool room panels and packing and grading machinery has been installed inside the shed.
In addition to the above, we are instructed by the City that the shed described as 'Shed 3' in the Retrospective Application is being used for the storage of egg cartons and other packing materials.
In September 1993, the City granted planning approval to your client to construct a new egg laying shed (1993 Approval). We attach a copy of the 1993 Approval for your information [not reproduced]. The plan attached to the 1993 Approval shows three existing sheds and the proposed new shed.
Pursuant to condition 4 of the 1993 Approval, your client was required to provide records of bird numbers being kept at the property. On 21 October 1993, your client advised the City that three of the four sheds were being used for egg laying and one of the four sheds was being used for rearing chickens with each shed containing 6,000 birds. We also attach a copy of the letter from your client dated 21 October 1993 [not reproduced].
Your client subsequently applied, by way of the Retrospective Application, to increase chicken numbers at the Property from the approved 24,000 chickens to 90,000 chickens. The planning report prepared by Allerding & Associates in support of the Retrospective Application confirmed that the four sheds were approved for the keeping of 24,000 chickens in 1993 and sought approval for internal modifications to the four sheds to enable the accommodation of 90,000 chickens. As you are aware, the Retrospective Application was approved by the City in 2012 (2012 Approval) subject to the number of chickens being reduced to 24,000 by the end of 2013. We understand the number of chickens at the Property has been reduced in accordance with the 2012 Approval.
Pursuant to the 1993 Approval, Sheds 2 and 3 can only be used for egg laying. That use was confirmed and re-approved by the City pursuant to the 2012 approval. The City has not approved the use of Sheds 2 and 3 for any purpose other than egg laying.
In view of the above, the use of Shed 2 for the processing, sorting and packing of eggs and the use of Shed 3 for the storage of packing materials is a contravention of clause 8.1 [LPS 17] (Scheme) because those uses are being carried out without your client first having applied for and obtained the planning approval of the City. That is the contravention of the Scheme upon which the directions issued by the City are based. As you are aware, a contravention of the Scheme is an offence under section 218(a) of the Planning and Development Act 2005 which carries significant penalties for corporate offenders.
Snowdale has sought a review of the Direction, essentially upon the ground that nothing in the planning approvals' history detracts from the fact that the applicant continues to operate with respect to the subject land, overall, a lawfully approved poultry farming operation and business. In particular, Mr McGowan, counsel for the applicant, submits that the activities attacked in the Direction with respect to Sheds 2 and 3 relate, at best, to an approval (in 2012) directed to certain additional structures on the land and, in any case, not the detailed prescription of certain activities carried out by the operation or business upon the subject land.
Agreed facts and documents
The parties have agreed upon the following facts and circumstances (emphasis added):
3.The land at Lot 600 (No 60) Cheltenham Street, Bennett Springs … was used for rearing poultry since before 1978 when the [City] granted planning approval to construct a shed on the Land for the purpose of rearing meat birds. Two other sheds existed on the Land at that time.
4.The Land was purchased by [Snowdale] on 18 April 1989.
5.In June 1993 the applicant applied for planning approval (1993 Application) to construct an additional shed on the Land to house poultry.
6.On 22 September 1993, the City granted conditional approval for a further 'Poultry Shed (Egg Laying)' on the Land (1993 Approval).
7.In 2011, the Applicant applied for planning approval for the poultry farm operations on the [subject land] (2011 Application).
8.On 29 February 2012, the City granted conditional planning approval for the 2011 Application, save for the increase in bird numbers (2012 Approval).
9.At the time of the 2011 Application and the 2012 Approval, Sheds 2 and 3 were being used to house poultry. Egg sorting, grading and packing took place in the building identified in the 2011 Application as 'Packing Shed/Grading Room' (Packing Shed).
10.On 20 December 2013, the City received a revised Operational Management Plan from the Applicant (Operational Plan).
11.On 24 December 2013, the City advised the Applicant the Operational Plan was to the satisfaction of the City.
12.Sheds 2 and 3 are not being used to house poultry.
13.Shed 2 is used for the purpose of mechanically unloading eggs from 30 egg trays. The eggs are then mechanically conveyed into the Packing Shed where they are graded and placed into cartons. The cartons are then placed in boxes in the Packing Shed. The boxes are placed on a conveyor and transported back to Shed 2 where they are mechanically sealed with tape and manually placed on pallets.
14.Shed 3 is being used to store egg cartons, boxes and trays for packaging eggs.
15.The Applicant has a poultry farm at Lot 32 Douglas Road, Beermullah (Beermullah Farm).
16.The Beermullah Farm produces approximately 95,000 eggs per day. All of those eggs are transported to the Land for grading, sorting and repackaging.
17.The eggs from the Beermullah Farm are processed in Shed 2 as set out in paragraph 13 above.
18.The egg cartons, boxes and trays stored in Shed 3 are used to package the eggs from the Beermullah Farm.
The parties have also agreed upon an extensive bundle of documents illustrative of or supporting the agreed facts set out above. So far as is necessary, extracts from those documents are referred to below.
Issues in the review
The parties have framed the issues in the review as follows:
1.Is the use of Shed 2 for the use described at paragraph 13 [of the agreed facts] lawful?
2.Is the use of Shed 3 for the purpose of storing packaging materials lawful?
Paragraph 13 referred to in the agreed issues is reproduced above (in the agreed facts) but, in short, it relates to the mechanical loading and packing of egg trays in Shed 2.
General principles in the construction of planning approvals
It is convenient to commence with a general review of the approach taken by courts and tribunals to the construction of planning approvals, particularly historical planning approvals.
In Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5; [2007] QPELR 334 (Serenity Lakes Noosa), Wilson DCJ (as his Honour then was) adopted, at [6], the following general principles in the interpretation of planning approvals (internal citations omitted):
(a)where a planning approval is ambiguous, it should be construed in a manner which places the least burden on the land owner;
(b)if a condition is imposed which restricts an approval, it should be expressed fairly;
(c)in construing an approval, the search is not for what the Council may have intended or what, if it had been interrogated about various possibilities, it would have said it intended; each approval must speak according to its written terms, construed in context but having regard to its enduring function;
(d)it has long been recognised that use rights are determined from the approval itself, which may include other material by express or necessary implication;
(e)the nature and extent of any approved development must be determined by construing the document of approval, including any plan or other document which it incorporated, aided only by that evidence admissible in relation to construction which establishes or helps to establish the true meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council;
(f)in construing an approval a Court is not dealing with an Act of Parliament and an overly technical approach is not called for. The words should not be scrutinised in the same way as words used by the parliamentary draftspersons;
(g)extrinsic evidence, in the form of expert evidence, may be admissible to explain technical terms. This may extend to explaining the nature of the site so that the impact and meaning of a condition can be understood; and
(h)extrinsic evidence is also admissible to understand the physical state of the land at the time of the approval. This may include identification of things like existing vegetation and specific features referred to by the conditions.
These principles have often been cited and followed in Queensland. For a recent example, see: Kin Kin Community Group Inc v Sunshine Coast Regional Council [2010] QPEC 144.
For Victoria, a broadly similar approach is taken: see Vestey v Warrnambool City Council [2008] VCAT 963; (2008) 160 LGERA 204; (Bell J) (Vestey).
The position in this State is, generally speaking, the same: see, for example, AAA Egg Company Pty Ltd and Shire of Gingin [2013] WASAT 149 (AAA Egg Company) applying, in particular, Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 (Allandale Blue Metal).
On the difficulties that might sometimes arise in this State with respect to planning approvals made under historically narrow use class categories see, for example: Lynch and Town of Victoria Park [2014] WASAT 162 and Perth Vet Emergency Pty Ltd and City of Stirling [2013] WASAT 204.
In the New South Wales Court of Appeal in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498, Mason P (Stein and Giles JJA agreeing) said, at [37] [41]:
How then is the language of an historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77 Kirby P (with whom Samuels JA and Hunt AJA agreed) referred to 'what, objectively determined, it might be said the Council meant by the permission which it gave to the ... predecessor [in title]'. I respectfully agree, but with this emphasis. The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having [certain] characteristics … it must speak according to its written terms, construed in context but having regard to its enduring function …
Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 is the locus classicus in relation to characterising the purposes of an existing use. It has also been applied to the issue of determining the scope of an extant development consent, which is a species of existing use rights … In Shire of Perth, Kitto J (at 535) distinguished between 'the precise manner of use for [the identified] purpose' and 'use generally for that purpose. ... The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities ... but by asking what, according to ordinary terminology, is the appropriate designation for the purpose being served by the use of the premises at the material date'.
Drawing upon this and other decisions, Kirby P stated the following three propositions in North Sydney Municipal Council Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 (at 59) [Boyts]:
1.Defining the 'existing use' depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ.
2.Nevertheless, the general approach to be taken is one of construing the 'use' broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.
3.In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.
These liberal principles apply notwithstanding recognition that 'neighbourhoods change' (ibid).
In Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310311, McHugh JA said:
... a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions and processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land ... .
The foregoing cases were concerned with the activities of a particular business or industry or with activities of a common kind. But I see no reason why the principle upon which those decisions were based is not also applicable to a case where land is used for activities, processes or transactions of widely differing kinds. If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose.
…
The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.
Historical approvals for the subject land
In late 1984, planning approval under the Metropolitan Region Scheme (MRS) was given by the then Shire of Swan 'for a poultry rearing shed' on the condition that 'the shed [be] used only for poultry rearing and/or rural purposes associated with the property'.
In September 1993, planning approval was given by the Shire under the Shire of Swan Town Planning Scheme No 9 (TPS 9) in accordance with the then applicant's 'application … and the attached plans'. The approval was for a 'poultry shed (egg laying)'. The plans detailed three 'existing' sheds, another existing building and a 'proposed new shed' (Shed 4). The truss design for the new shed was included with a sketch site plan. One of the conditions attached to the approval required that '[t]he shed [be] used for domestic and/or rural purposes only associated with the property, excluding human habitation'. Presumably, this is a reference intended to apply to the new shed, Shed 4.
Approval by the Shire under TPS 9 was given for a 'machinery and storage shed' in March 1997. A 'special condition' was attached to the approval which stated that the shed 'is permitted to be used for general and machinery storage'.
In 2011, approval under the MRS was sought for 'additions and alterations to existing poultry farm, including retrospective approval for development, as described in the attached [planner's] report'. Simultaneously, a corresponding approval was sought under LPS 17. In the LPS 17 application, the subject land's 'existing building/land use' is described as 'poultry farm'.
The 'attached report' is a voluminous document prepared by Allerding and Associates dated 4 March 2011 (Allerding report). That document was revised in July 2011, effectively at the request of the City's officers (2011 revised application). Later, further exchanges took place between Allerding and Associates and the City's officers in answer to detailed queries from the officers.
The 2011 revised application sought planning approval in the following terms:
2.0THE PROPOSAL
The proposal seeks retrospective approval to the developments listed by the Shire [sic, City] in the Notices [that is, written directions under s 214(2) of the PD Act, not the subject of this review] along with the additional uses of Office and Shop, as uses that are incidental to the predominant use and other proposed incidental development as described below (Application).
An updated development plan (Development Plan) is included as Annexure 3 ['Development Application Plans', not reproduced] which has been developed from a current site survey …
Council's approval to the Development Plan is also sought as part of this Application.
The details of the Application are covered within this report forming part of the application to obtain approval from the City of Swan (City) and the Western Australian Planning Commission (WAPC).
In summary, approval is sought for the poultry farm operations on site (the Development) as shown on the Development Plans included in Annexures 3 [and] approval for the proposed odour stacks and shown in Annexure 10 ['Proposed Odour Stack/Air Chamber', not reproduced]. The development proposal includes:
a)Approval for the keeping of 90,000 birds as part of the poultry farm operations with sheds 1, 2, 3 and 4 being used to accommodate chickens;
b)Retrospective approval for internal modifications to sheds 1, 2, 3 [and] 4 to enable the accommodation of the number of chickens as detailed above;
c)Retrospective approval for the shop/office/store building located on the north western corner of the poultry farm operations;
d)Approval of the incidental shop use and incidental office use for the poultry farm;
e)Approval of the carparking and loading area between the shop/office building, poultry sheds and Cheltenham Street;
f)Approval for the construction of a new customer and staff parking area.
g)Retrospective approval for the packing shed building (located to the west of poultry shed 1), construction of the ramps and retaining walls adjacent to the packing shed and use of that building for grading and packing of eggs and storage of eggs;
h)Retrospective approval for the coolroom (located to the west of poultry shed 2);
i)Retrospective approval for the covered area (to the western side of sheds 2 [and] 3) that is currently used to display bagged processed manure that a product based on the manure produced on site. Note that storage and selling of manure will cease and the covered area will be used to sell compost, derived from a portion of the manure derived from he on site operations that has been treated offsite at an approved facility.
j)Approval for the bagging and selling of the compost based upon processed manure produced as part of the poultry farm operations that has been treated off site at an approved facility;
k)Retrospective approval for incidental feed silos constructed on the western ends of sheds 1, 2, 3 [and] 4;
l)Retrospective approval for the conveyor system and associated structures that extends to the east of sheds 2 & 3 that is used to transfer manure direct to into a trailer for immediate removal at regular intervals;
m)Retrospective approval for the conveyor system and associated structures that is used to collect the eggs and extends between sheds 2, 3 and 4 and the packing shed;
n)Retrospective approval for the lean to structure that is to the east of shed 4 that is used as a manure drying area. This area will become part of the base for the odour stack for shed 4. The structure will remain but will no longer be used to store raw manure;
o)Retrospective approval for the two lean to addition structures to the northern and southern sides of the storage shed, located to the east of shed 3;
p)Use of the storage shed for storage and bagging of manure based compost that is processed offsite at an approved facility and is then brought back on site at compost to be bagged and sold on site;
q)Proposed odour stacks at the eastern end of sheds 2, 3 and 4 as shown in the plans included in Annexure 10;
r)Retrospective approval for the 5 sea containers located on site and used for storage of egg cartons;
s)Retrospective approval for the alpaca pen (located between Shed 3 and Cheltenham Street), used for the keeping of alpacas (note that alpacas are a soft footed animal and are not a hoofed animal);
t)Retrospective approval for the hen sales area;
u)Approval for a new proposed toilet facility, to be located behind (east of) the shop building;
v)Development as depicted in the plans included in Annexures 3 [and] 10.
It is plain that the application was based (and expressly referenced in the Allerding report) upon rectifying and regularising the situation on the ground at the subject land mainly in response to the City's concerns about allegedly unapproved activities taking place on the site (including the number of birds onsite and the erection of buildings and other structures). In addition, the 2011 revised application was in response to a request dated 28 April 2011 from the City for a revised site plan 'identify[ing] the use of all structures' on the subject land. However, as Mr McGowan pointed out, the 2011 revised application expressly asserted (at 30) that:
With respect to the poultry farm use, this use has not changed since the original grant of approval by the City. The Applicant therefore does not require Council's further approval to the poultry farm use.
In February 2012, two decisions were made in respect of the City's objective of regularising all relevant activities on the subject land. The first decision dealt with the number of birds permitted on site. That decision is not relevant to this review except to note that the effect of it was to deny to Snowdale an increase in the number of birds sought for the site. Importantly, however, it is worth noting that much of the Allerding report appears premised upon a much higher number of onsite poultry than was finally permitted by the City.
The second approval, dated 29 February 2012, dealt with the 'construction of structures associated with [an] existing poultry farm' (2012 approval). In a short instrument of planning approval, retrospective and conditional approval was given to 'the construction of the associated buildings at the existing poultry farm'. With certain immaterial deletions or variations this approval was, by consent, affirmed in other review proceedings in this Tribunal: see the Tribunal's orders dated 29 December 2012. The approval does not expressly refer to the 2011 revised application, but does refer to a 'revised operational management plan'.
Importantly, and focusing on the 2012 approval, none of the agreed facts or the material documents, on their face, appear to express a prohibition in the scope of approval as to land use, as is specifically reflected in the terms of the Direction. Whether such a result can be found by implication or by some other construction of the documents is considered further below.
Respondent's arguments
Mr Gillett, for the City, submitted that the 2012 retrospective approval was the relevant approval as it in effect overtook prior approvals for the land. Mr Gillett cited Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111 (Coventry Square). There the Tribunal said, at [24]:
[R]etrospective approval, if granted, necessarily has … the effect of neutralising, at least practically, any prior inconsistent obligation to build precisely on the same site or space according to the original approval, as it has been 'overtaken' by another approval which has been authorised by statute. Cf Bretherton v Moonee Valley City Council [2000] VCAT 1151 at [78], cited with approval in Erny Pty Ltd v Maribyrnong City Council [2006] VCAT 195, '... inconsistent [approvals] cannot be relied on simultaneously'.
That decision also noted that in planning law there may be 'multiple approvals for multiple developments on the same land': see Coventry Square at [23], citing Rohrlach v City of Unley [2011] SAERDC 19 at [47].
It was suggested by the City that the only lawful uses of Sheds 2 and 3 'are the uses approved pursuant to' the 2012 approval. The current uses noted in the agreed facts are, it is submitted, not covered by that approval.
It was submitted that the task of construing the extent of the 2012 approval includes reference to the information supplied by the applicant in the Allerding report and the 2011 revised application, in effect, confirmed by subsequent reports furnished to the respondent (the Operational Management Plan and the Odour Management Plan). So much may in the main be accepted, at least as regards the Allerding report and its revision: see the cases cited above under the heading 'General principles in the construction of planning approvals'.
However, Mr Gillett appears to go further and submits that:
[B]ecause the 2011 Application specifically identified that Sheds 2 and 3 as 'Poultry Sheds' that [sic] were being used to house poultry, that is the use for which those Sheds were approved pursuant to the 2012 Approval. It follows, therefore, that Sheds 2 and 3 cannot lawfully be used for packaging eggs or storage of materials respectively.
On the face of it, the indications in those documents supplied to the City by Snowdale, such as they are, appear inconsistent with the activities that are now taking place in Sheds 2 and 3. However, that does not in itself make such activities unlawful unless this submission is accepted by the Tribunal or a court. Critically, Mr Gillett's submission is premised upon the absorption of that material into the 2012 approval.
Mr Gillett also drew attention to the significant number of eggs coming into Shed 2 from external sources (that is, 'from other poultry farms operated by the applicant'). The other limb to Mr Gillett's argument was that the packaging of eggs (from any source) is neither incidental to any approved use nor approved as either 'Industry Rural' or a use not listed under LPS 17. I will return to this matter below.
Analysis
In my opinion, the respondent's main submissions on the scope and effect of the 2012 approval ought not to be accepted. This is so for the following reasons.
First, the terms of the relevant approval speak expressly of the 'construction of structures' associated with an existing poultry farm. This notation of the overall purpose of the 2012 approval strongly suggests that the main focus was upon regularising the development and use reflected in the actual physical structures erected upon the subject land. It is true that besides consent being predominantly sought for approval as to various buildings and structures, the 2011 revised application did seek approval for some land uses and operations (for example, 'bagging and selling compost'). Nevertheless, I would accept that all of the identified physical structures and the enumerated activities in the list reproduced above (as 'The Proposal'), read with the various associated plans to give context, must be now regarded as, to the extent necessary, having been approved except, of course, as to the number of birds permitted onsite.
Whilst it is true that in 'The Proposal' and the associated plans and documents it is suggested, indicated or implied (for example, in the Odour Management Plan which is part of the environmental management plans in Annexure 12 to the 2011 revised application) that Sheds 2 and 3 are or will be used for egg laying, such 'assurances' if that is what they were will not be automatically incorporated into the approval. As was held in Allandale Blue Metal, at [46], emphasis added:
If the consent in terms does no more than approve the application, it will be necessary to go to the application at least to identify the subject matter of the consent ... A consent in those terms would not necessarily have the effect of incorporating all of the matters dealt with in the application. For example, general matters of fact or assertions of intention furnished or made for the purpose of informing the consent authority of the nature of the development, are not likely to be incorporated[.]
In any event, the significant reduction in the number of birds permitted onsite (down from 90,000 to 24,000 birds, as required by the respondent) may be one possible explanation as to why such indications were not progressed. That fact alone points to the further difficulty in incorporating extensively from the 2011 revised application, a document that the respondent had, in effect, rejected in terms of one substantial component. That is, the first item found on the list in 'The Proposal', namely item 2.0(a): '…the keeping of 90,000 birds as part of the poultry farm operations with Sheds 1, 2, 3 and 4 being used to accommodate chickens'.
It is at least plausible that the result in this case might have been different I express no concluded view if the proposal as presented had been expressly incorporated (with careful, if not extensive, drafting to avoid uncertainty) into a subsequent approval and then purportedly implemented in full.
In any case, such attempts on the part of the respondent to suggest that indications (or assurances) given by the applicant have been incorporated by reference offends at least two other principles of construction identified in the cases referred to above.
First, land use concepts deployed in planning law, including how such use is regulated by approvals, usually nowadays assume a level of generality. Thus, consistently with the authorities discussed above, Preston CJ could say in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400, at [27] and [36] (internal citations omitted), that:
In planning law, use must be for a purpose. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued.
The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes …
Accordingly,
… the general approach to be taken is one of construing the 'use' broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question. [Boyts, at 59, emphasis added]
The corollary of this position is that where such use is to be restricted, sufficient precision and specificity is needed. Hence the principle, identified above, that 'if a condition is imposed which restricts an approval, it should be expressed fairly' (Serenity Lakes Noosa at [6], emphasis added); that is to say, in a clear and regular manner. Restrictions which are to be assumed and implied from mere indications in a planning application do not, in my view, conform to normal or accepted rules or standards; that is to say they are not imposed 'fairly'.
Indeed, such restrictions would and should ordinarily be found in properly formulated (and justified) conditions: cf the discussion on the conceptual nature of a planning condition found, for example, in Peter McNab and Matthew Goyder, 'The Nature and Validity of Conditions and the Grounds for Impugning Them', Australian Environmental Law Digest, June 2015, 3 10, at 4.
Secondly, even if it be correct to say that Sheds 2 and 3 were sufficiently identified as 'Poultry Sheds' and that is the use for which those sheds were nominally approved pursuant to the 2012 approval, it does not automatically follow that Sheds 2 and 3 cannot lawfully be used for the packaging of eggs or the storage of related materials. Unless a prohibition or other restriction was clearly in place, some ambiguity would seem to arise as regards the extent of the use approval, given that the 2012 approval either assumes or, in effect, authorises (or both) a large commercial operation on 2.7 hectares, an operation connected with the production and supply of eggs.
This is because in the interpretative context an ambiguity arises wherever sufficient doubt is found. Thus, Bell J speaking in Vestey at [42]:
The need to consider surrounding circumstances arises when, looking at the [instrument of planning approval] alone, its meaning is ambiguous. But the concept of 'ambiguity' that operates here is not a restrictive one. In the words of Spigelman CJ in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548, at [116]:
The use of the word 'ambiguity' in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is for whatever reason, doubtful.
And, as we have seen, 'where a planning approval is ambiguous, it should be construed in a manner which places the least burden on the land owner': Serenity Lakes Noosa at [6]. This principle is wellestablished in planning law in Queensland (see, for example, the citation in AAA Egg Company at [28], of Transpacific Industries Group v Ipswich City Council [2012] QPEC 69) and is otherwise consistent with the 'liberal principles' of the interpretation of use found in the New South Wales cases referred to above.
Because of the conclusion that I have reached on the grounds discussed immediately above, this is not the occasion to consider whether Talbot J's dictum in Maybury v Weston Aluminium (Producers) Pty Ltd [1998] NSWLEC 17 should be also applied in this case. There, his Honour said that to 'construe [the relevant condition] of the development consent in the way demanded by the applicant … would be contrary to common sense and in defiance of commercial reality' (emphasis added). There are echoes of this position in some of Mr McGowan's submissions in this case.
However, I would reserve for another occasion consideration of the width of that dictum and the cautious deployment of this approach in planning matters. I would certainly not rule out the logic of its application in an appropriate case, particularly perhaps as an aid to the characterisation, where necessary, of the incidental activities of large commercial operations.
External eggs and the packaging of eggs
LPS 17 recognises the land use genus 'Animal husbandry Intensive' which is defined to mean 'premises used for keeping, rearing or fattening of pigs, poultry (for either egg or meat production), rabbits (for either meat or fur production) and other livestock in feedlots'. A 'poultry farm' is not defined in the scheme.
In Palmer v Surf Coast Shire Council [1999] VCAT 463 the Tribunal records that the relevant town planning scheme there under review defined a 'poultry farm' as '[l]and used to keep or breed more than any of the following for the production of eggs, meat or feathers ... 30 mature or immature domestic fowls.' The Collins English Dictionary defines it as a 'farm on which domestic fowls, esp chickens, are reared for their eggs or meat'. On the other hand, the Century Dictionary (1904, Vol VI) defines, as does its modern successor editions, a 'poultry farm' as '[a] place where poultry are reared and kept; an extensive establishment for the breeding and fattening of poultry and the commercial production of eggs' (emphasis added).
Consistently with these definitions, the Western Australian Planning Commission's State Planning Policy 4.3 Poultry Farms refers to a poultry farm as 'land and buildings used for rearing or keeping of poultry for breeding, commercial egg production or commercial meat production'.
Plainly, having regard to the terms of the 2012 approval (particularly with its references to an 'existing poultry farm') in the context of the 2011 revised application and the relevant history of the site, the City was intending, to the extent necessary, to authorise or to confirm, as intensive animal husbandry, land use as a poultry farm on the scale indicated limited to commercial egg production (that is, not poultry for consumption) with some additional approved uses.
It must therefore follow that the packaging of eggs, critical to their efficient, safe and hygienic transport and distribution, taking place in an approved physical structure or building on the subject land (a building not limited as to a specific use or function) is a necessary incident of extensive commercial egg production. Consequently, all steps ancillary to or reasonably connected with this process, including storage connected therewith; the grading and sorting, and the mechanical conveyance of the eggs, will be included within the authority of the 2012 approval.
Such a result is consistent with the principle that land use decisions should be seen as operating 'at a level of generality' which is 'necessary and sufficient to cover the individual activities, transactions or processes carried on' and not in terms of the 'detailed activities, transactions or processes' themselves.
The uncontradicted facts show that approximately 95,000 additional eggs arrive from an 'integrated' egg production (that is, pursuant to the internal commercial arrangements of Snowdale with respect to another of its poultry farms) in one or two truck movements a day. The submission of Mr McGowan was that the operator is taking advantage of some unused capacity flowing from the reduction in bird numbers on the subject land. There is no doubt that, on their face, such activities are or could be reasonably regarded in themselves as part of the cycle of 'commercial egg production' and that they are not either expressly or implicitly (on the analysis above) prohibited by the 2012 approval.
Incidental use
Notwithstanding that LPS 17 purports to regulate a change of use of land where that change is to an 'incidental use' of land (LPS 17, cl 4.3.3; 'incidental use' is defined as 'a use of premises which is ancillary and subordinate to the predominant use'), the position at common law is that a discrete land use that is said to be incidental to a use will only require separate planning approval if the facts and circumstances demonstrate that a relevantly separate use emerges.
In the inquiry into that issue, attention must be directed to the nature of the 'separate' activity, its scale and the 'regularity and extent' of the activities involved. The question is one of 'fact and degree': see, for example, my decision in Clay and City of Nedlands [2012] WASAT 193 citing Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211; aff'd on appeal: Clay and City of Nedlands [2012] WASC 402 (Hall J). However, those general factors must always be applied in a site specific context.
For example, in Tamarix Pty Ltd v Greater Dandenong City Council [2011] VCAT 2182 (Tamarix) the Tribunal considered an egg farm business which was classified as 'intensive agriculture' under the provisions of the relevant planning scheme. The farm operated on a 24 hour basis with 120,000 hens kept on site for laying purposes. The operation resulted in: 'egg collection of approximately 60,000 per day, sorting, packaging and distribut[ion] to generally wholesale and commercial customers'. Total egg sales were in the order of $5 million per year. A declaration was sought that various other nonapproved farm activities were lawful ancillary uses.
Senior Member Rickards said, at [14] [16]:
No permit [planning approval] is required for an ancillary use. Various decisions of the Courts and Tribunal have identified what would constitute an ancillary activity. In Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 the High Court approved the statement of Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161:
Where a part of land is used for the purpose which is subordinate to the purpose for which another part is used, the whole of the land is regarded as being used for the dominant purpose. The subordinate purpose is merely incidental or ancillary to the dominant purpose.
Where the whole of the land is used for more than one purpose, but the other purposes are subordinate, the whole of the land is regarded as being used for the dominant purpose.
Where the whole of the land is used for more than one purpose, none of which subserves the others, it is irrelevant to ask which of the purposes is dominant. If any one of the purposes is operating in a way which is independent and not merely incidental to others and it is prohibited, it is 'immaterial that it is overshadowed by others'.
Each case requires determination of this issue on its own facts and circumstances:
… there is no single test to determine dominant against ancillary, and that different criteria, themselves not readily susceptible of classification, perhaps relating to appearance or association, perhaps of a planning matter (like traffic or parking) perhaps of a monetarily quantitative nature (like revenue), perhaps of a geographically quantitative nature (like scale) are looked to as appropriate in the circumstances of each case. [Northcote Food Wholesalers Pty Ltd v Northcote CityCouncil (1994) 13 AATR 175; (1994) 84 LGERA 54, per Teague J.]
In Alphonso v Casey City Council [2006] VCAT 595 the Tribunal, in considering whether prayer meetings in a dwelling were ancillary to the use as a dwelling [it was held that they were], or a separate use as a place of worship, set out a number of concepts in relation to ancillary activities distilled by [counsel in] his submission [internal citations omitted]:
Ancillary activities are correctly regarded as part of the primary use.
It is not particularly relevant whether the ancillary activities are similar or quite distinct from the primary use.
Ancillary activities must be an adjunct, but not a necessary adjunct to the primary use. The ancillary activities can be 'optional extras'.
The planning merits of the activities [whether a permit would be granted for them if they were a separate use] are not relevant in determining whether the activities are a separate use or not.
A preference or desire for the Responsible Authority to control or restrict activities is not relevant to the assessment.
The Senior Member, after considering the scale, history and nature of these other rural activities on site, activities which were not insignificant, made a declaration that 'the sale of egg products, live chickens, chicken manure, bagged chicken feed, processed chicken meat and honey from the subject land … are ancillary to the use of the land as an egg farm'.
Having regard to Tamarix and the other authorities cited above, I am quite unable to see on the material before me how such additional egg production amounts to a separate land use. The nature of the site is as an approved commercial egg farm with unused production capacity, a fact that flows from the City's own decision to effectively reduce the number of birds on site. Making use of that extra capacity for additional egg production from a related entity is an ancillary, incidental or relevantly subordinate use of the land.
Costs
The Tribunal is, generally speaking, a costsneutral jurisdiction. However, given the, by now, well-established principles discussed and applied above, local governments that, in future cases, persist in applying perhaps an unduly narrow or formalistic view of the extent of their land use decisions might face an argument that a costs order should be made against them.
This would be to partially indemnify an applicant who successfully invokes the tenor of this decision and the authorities upon which it relies. This would only apply, of course, in the case where the necessary precision to be imposed as regards identifying, in effect, sensible and justifiable limitations on land use (through, for example, properly drafted conditions) was absent.
Conclusion and final orders
Thus, for the reasons given above, the respondent has failed to sustain the Direction on any of the grounds put forward by it. Accordingly, the review should be allowed and the decision to issue the Direction should be set aside. The Tribunal makes the following orders:
1.The review is allowed.
2.The decision to issue the Direction under review is set aside and in lieu thereof there will be a decision not to issue the Direction.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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