Spartel Pty Ltd and City of Wanneroo
[2016] WASAT 110
•26 JULY 2016
SPARTEL PTY LTD and CITY OF WANNEROO [2016] WASAT 110
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 110 | |
| 15/09/2016 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:279/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS K WHITNEY (MEMBER) | 26/07/16 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SPARTEL PTY LTD CITY OF WANNEROO |
Catchwords: | Town planning Development application Turf farm Whether storage of fertiliser for onsale to other primary producers a change of use Words and phrases: 'storage yard', 'agriculture', 'horticulture', 'primary product' |
Legislation: | City of Wanneroo District Planning Scheme No 2, cl 1.6(h), cl 1.9.3, cl 3.2.2, cl 3.2.3, cl 3.3, cl 3.17, cl 6.1.1, cl 6.1.3, cl 6.2.1, cl 6.6.1, cl 6.6.4, cl 6.11, cl 67, Sch 1 Health Act 1911 (WA) Metropolitan Region Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 67 Planning and Development Act 2005 (WA), s 4(1), s 214, s 252(1), s 257B State Administrative Tribunal Act 2004 (WA), s 9, s 27(1), s 27(2), s 29(1), s 31, s 32, s 60(2) |
Case References: | Goldrange Pty Ltd and City of Wanneroo [2011] WASAT 48 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Magic Hand Car Wash Franchisor Pty Ltd and Town of Claremont [2015] WASAT 133 Optus Mobile Pty Ltd and City of Swan [2016] WASAT 72 Puma Energy Australia and City of Cockburn [2016] WASAT 36 Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 |
Summary | The applicant produces a product known as Fabfert from raw chicken manure, and applied to the City of Wanneroo for approval to store the product at a turf farm. The turf farm would use about 20% of the product on its own premises and the applicant proposed to onsell the balance to market gardens in the area. The application was refused on the grounds that the proposed use was 'storage yard' and was not permitted within the Rural Resource zone. The applicant sought review of the decision by the Tribunal.,Having regard to the nature of the proposed use, its scale and regularity and extent of its activities, the Tribunal found that the use of part of the premises to store Fabfert represented a change of use. There was no connection between this storage and the existing use of the premises as a turf farm other than the barter arrangement between the applicant and the landowner permitting the turf farm to use up to 20% of the fertiliser on site in exchange for use of the land. Furthermore, although the scale of the proposed development in geographic size was small, the regularity and extent of its activities were substantial. The Tribunal was satisfied as a matter of fact and degree that the proposed use was a separate land use.,The Tribunal went on to consider whether 'storage yard' was the proper classification. The Tribunal was satisfied on the evidence that the proposed development could reasonably be determined to fall within that use classification. Furthermore, the Tribunal was not satisfied on the evidence that another use classification was a 'better fit'. As 'storage yard' was not a permitted use class in the Rural Resource zone, the Tribunal was satisfied that the respondent's decision to refuse to approve the development on this basis was the correct and preferable decision and the decision was affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SPARTEL PTY LTD and CITY OF WANNEROO [2016] WASAT 110 MEMBER : MS K WHITNEY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 26 JULY 2016 PUBLISHED : 15 SEPTEMBER 2016 FILE NO/S : DR 279 of 2015 BETWEEN : SPARTEL PTY LTD
- Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning Development application Turf farm Whether storage of fertiliser for onsale to other primary producers a change of use Words and phrases: 'storage yard', 'agriculture', 'horticulture', 'primary product'
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 1.6(h), cl 1.9.3, cl 3.2.2, cl 3.2.3, cl 3.3, cl 3.17, cl 6.1.1, cl 6.1.3, cl 6.2.1, cl 6.6.1, cl 6.6.4, cl 6.11, cl 67, Sch 1
Health Act 1911 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 67
Planning and Development Act 2005 (WA), s 4(1), s 214, s 252(1), s 257B
State Administrative Tribunal Act 2004 (WA), s 9, s 27(1), s 27(2), s 29(1), s 31, s 32, s 60(2)
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant produces a product known as Fabfert from raw chicken manure, and applied to the City of Wanneroo for approval to store the product at a turf farm. The turf farm would use about 20% of the product on its own premises and the applicant proposed to onsell the balance to market gardens in the area. The application was refused on the grounds that the proposed use was 'storage yard' and was not permitted within the Rural Resource zone. The applicant sought review of the decision by the Tribunal.
Having regard to the nature of the proposed use, its scale and regularity and extent of its activities, the Tribunal found that the use of part of the premises to store Fabfert represented a change of use. There was no connection between this storage and the existing use of the premises as a turf farm other than the barter arrangement between the applicant and the landowner permitting the turf farm to use up to 20% of the fertiliser on site in exchange for use of the land. Furthermore, although the scale of the proposed development in geographic size was small, the regularity and extent of its activities were substantial. The Tribunal was satisfied as a matter of fact and degree that the proposed use was a separate land use.
The Tribunal went on to consider whether 'storage yard' was the proper classification. The Tribunal was satisfied on the evidence that the proposed development could reasonably be determined to fall within that use classification. Furthermore, the Tribunal was not satisfied on the evidence that another use classification was a 'better fit'. As 'storage yard' was not a permitted use class in the Rural Resource zone, the Tribunal was satisfied that the respondent's decision to refuse to approve the development on this basis was the correct and preferable decision and the decision was affirmed.
Category: B
Representation:
Counsel:
Applicant : Self represented
Respondent : Mr S Allerding (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Allerding & Associates
Case(s) referred to in decision(s):
Goldrange Pty Ltd and City of Wanneroo [2011] WASAT 48
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Magic Hand Car Wash Franchisor Pty Ltd and Town of Claremont [2015] WASAT 133
Optus Mobile Pty Ltd and City of Swan [2016] WASAT 72
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
Introduction
1 This matter was determined on the documents and the oral reasons were delivered on 26 July 2016. The following reasons for decision are the oral reasons delivered by the Tribunal, subject to minor editing for clarity, style and inclusion of full citations.
2 On 11 February 2014, Spartel Pty Ltd (applicant) requested development approval from the City of Wanneroo (respondent) for a proposal to store composted chicken manure, a product referred to as Fabfert Organic Soil Fertiliser (Fabfert), at No 288 (Lot 121) Carabooda Road, Carabooda (premises). The total area of the premises is 141.21 hectares and is a battleaxe configuration. The premises are currently used as a turf farm. The area of the proposed development is not used for turf production.
3 On 24 June 2015, the respondent refused the applicant's request for development approval. The application was dealt with by the respondent as an Unlisted Use (Stockpile) and the reasons given by the respondent for the refusal were that the application did not adequately demonstrate how the proposed use satisfied the provisions of the relevant scheme, and that the plans provided with the application were inadequate. On 18 August 2015, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the refusal to approve the proposed development on the premises.
4 On 9 March 2016, following reconsideration of its decision pursuant to s 31 of the State Administrative Act 2004 (WA) (SAT Act), the respondent again refused planning approval of the proposed development. The reasons given by the respondent for the refusal were as follows:
a) Council considers that the application is consistent with the definition of a storage yard and, as such, is a use which is not permitted within the Rural Resource zone.
b) The proposal is inconsistent with the objectives of the Rural Resource zone under cl 3.17.1 of the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme).
c) The proposal is inconsistent with cl 67 of the deemed provisions of DPS 2, with particular regard to the compatibility of the development on adjoining land, the amenity of the locality, and the submissions received on the application.
5 On 9 March 2016, the respondent also issued a direction pursuant to s 214 of the PD Act directing the owner of the premises to remove the Fabfert product within 61 days.
Applicant's development proposal
6 Pursuant to s 31 of the SAT Act, it is the respondent's decision in relation to the development proposal presented to it for reconsideration on 9 March 2016 that is the subject of review by the Tribunal. The proposal provides for three windrows, each measuring 10 by 70 by 2.5 metres, holding a maximum of 1,000 tonnes of Fabfert at any one time, to be located in a 10,000m2 area approximately 500 metres from the northern boundary of the premises and approximately 300 metres from the eastern boundary of the premises (proposed development).
Statutory framework and jurisdiction
7 Section 252(1) of the PD Act provides as follows:
(1) Subject to subsection (3), if
(a) under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b) a person has applied to the responsible authority for such a grant; and
(c) the responsible authority has
(i) refused the application; or
(ii) granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority's decision.
9 Section 27(2) of the SAT Act provides that the purpose of a review by the Tribunal is to produce the correct and preferable decision at the time of the decision upon the review. The Tribunal's task is to make a fresh decision in place of the original decisionmaker, and s 29(1) of the SAT Act provides that the Tribunal has, when dealing with a matter in the exercise of its review, jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.
Planning framework
Regional and local planning schemes
10 The premises are zoned Rural under the Metropolitan Region Scheme. The premises are zoned Rural Resource under the Scheme. One of the overall objectives of the Scheme is to protect, and where appropriate enhance, the prospects of market gardening and other agricultural activity: cl 1.6(h) of DPS 2.
11 The Rural Resource zone is detailed in cl 3.17 of the Scheme. Its objective is to protect certain areas of intensive agriculture from incompatible uses or subdivision: cl 3.17.1(a) of DPS 2. It provides for additional matters which a decisionmaker must have regard to when considering applications for subdivision or planning approval set out at cl 3.17.2 (a) to cl 3.17.2(k) of DPS 2. Intensive agriculture is considered a priority use (cl 3.17.2(b) of DPS 2) and rural residential development is considered an incompatible use within the zone: cl 3.17.2(d) of DPS 2. There is a presumption in favour of applications for intensive agriculture subject to the acceptable management of any offsite environmental and land use impacts: cl 3.17.2(e) of DPS 2. Where planning approval is sought for 'sensitive uses' (defined in Sch 1 of DPS 2 as including residential), the applicant must include with the application a written acknowledgment of the nature and legitimacy of any nearby existing or future priority use, and acceptance of the existence, or potential existence, of noise, dust, odour and other impacts which may be associated with such uses: cl 3.17.2(i) of DPS 2. A notation to such effect is also required on the title: cl 3.17.2(k) of DPS 2.
12 The Scheme provides at cl 6.1.1 that planning approval is required for any development on land zoned or reserved under the Scheme (other than development referred to in cl 6.1.3, which is not relevant to the present application). Clause 6.2.1 of the Scheme provides that the commencement, carrying out or change of a use on land shall be a development, notwithstanding that it does not involve the carrying out of any building or other works.
13 Pursuant to cl 6.6.1 of the Scheme, an application for planning approval involving a 'P' use cannot be refused by reason of the unsuitability of that use. Nevertheless, the Council may impose conditions upon the planning approval. The 'P' uses in the Rural Resource zone are certain Home Businesses (categories 1 and 2), Industry Rural, Intensive Agriculture, and Rural Use: Table 1 of DPS 2. A residential building is an 'X' use in the Rural Resource zone, which must be refused unless otherwise specifically provided by the Scheme: cl 6.6.4 of DPS 2.
14 The Scheme provides that where a particular use is mentioned in Table 1, it is deemed to be excluded from any other use class which by its more general terms might otherwise include that use (cl 3.2.2 of DPS 2). Where the use of land for a particular purpose is not specifically mentioned in Table 1 and cannot reasonably be determined as falling within the interpretation of one of the use categories, it may fall within the provisions of Unlisted Use in cl 3.3 of the Scheme.
15 Pursuant to s 257B of the PD Act, cl 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) is deemed to form part of the Scheme: see Puma Energy Australia and City of Cockburn [2016] WASAT 36. Clause 67 of Sch 2 of the Regulations provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that in the opinion of the local government, those matters are relevant to the development the subject of the application.
State Planning Policy 2.5 Land Use Planning in Rural Areas Policy
16 State Planning Policy 2.5 Land Use Planning in Rural Areas Policy (SPP 2.5) applies to rural and rural living land in Western Australia, particularly land zoned for agricultural purposes in a local planning scheme: cl 3.1 of SPP 2.5.
17 The objectives of SPP 2.5 are to protect rural land from incompatible uses by, inter alia, making land use decisions that support the protection of priority agricultural land: cl 4(a)(ii) of SPP 2.5. Clause 5.8 of SPP 2.5 notes that sensitive or incompatible land uses in rural areas can compromise rural land uses and 'effectively sterilise rural land'. It provides that existing rural land uses need to be protected to enable landowners to 'exercise their operational needs effectively and appropriately'.
18 Clause 5.8 of SPP 2.5 provides that land use conflicts should be managed by a range of planning tools, including (in the absence of sitespecific technical studies) buffer distances guided by the Environmental Protection Authority's (EPA's) Guidance Statement No 3.
Environmental Protection Authority's Guidance for the Assessment of Environmental Factors
19 The EPA's Guidance Statement No 3 Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses (2005) referred to in SPP 2.5 (2005 EPA Guidance Statement) is in the process of being amended. The Department of Environment Regulation's (DER's) draft Guidance Statement: Separation Distances (2015 Draft Guidance Statement) was released for consultation, and the consultation period closed in November 2015.
20 Both documents provide for separation distances between sensitive land uses and certain industrial/agricultural uses.
City of Wanneroo Interim Rural Strategy (July 2000)
21 The respondent's Interim Rural Strategy (July 2000) predates the Scheme and is largely superseded by it. It confirms the respondent's policy that within the agricultural resource area, agriculture is regarded as the highest and best use of land and its preferred long term use.
The proceedings
22 The Tribunal notes that the applicant was unrepresented in the proceedings and was often unavailable to attend Tribunal hearings in person. The Tribunal's objectives set out in s 9 of the SAT Act require it:
(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties[.]
23 Furthermore, pursuant to s 32 of the SAT Act, the Tribunal is bound by the rules of natural justice and:
(6) The Tribunal is to take measures that are reasonably practicable -
(a) to ensure that the parties to the proceeding before it understand the nature of the assertions made in the proceeding and the legal implications of those assertions; and
(b) to explain to the parties, if requested to do so, any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceeding; and
(c) to ensure that the parties have the opportunity in the proceeding -
(i) to call or give evidence; and
(ii) to examine, cross‑examine or re‑examine witnesses; and
(iii) to be heard or otherwise have their submissions considered.
(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding[.]
Issues
25 The following issues were agreed by the consent of the parties:
1) Whether the use of part of the premises to store Fabfert represents a change of use of the premises.
2) If the use does represent a change of use to the premises, what is the proper classification of that use?
3) Whether the proposed use meets the objectives of the Rural Resources zone, and whether the development application should be approved.
26 The respondent submits that on the facts of the case, the proposed development represents a change of use of the premises, and that the proper classification for the separate use of the land is 'Storage Yard'. The respondent submits that this use is impermissible. The respondent further submits in the alternative that if the proposed development is approved, it must be subject to the respondent's draft conditions to protect the amenity interests of the surrounding landowners.
27 The applicant maintains that the proposed development is ancillary to the use of the premises as a turf farm and should be approved as it is a permissible use and is compatible with the objectives of the Rural Resources zone.
Evidence
28 The Tribunal has accepted into evidence the following documents:
1) The respondent's s 24 bundle of documents, annexed to its statement of issues, facts and contentions (SIFC), pages 1 192 (Exhibit 1).
2) The applicant's s 24 bundle of documents (Annexures A E to the applicant's response to the respondent's SIFC) (Exhibit 2).
3) The witness statement of Mr Shawn Lowley dated 24 June 2016 and attachments (Exhibit 3).
4) The witness statement of Mr Wayne Harris dated 24 June 2016 and attachments (Exhibit 4).
5) The witness statement of Mr Thomas James Hockley dated 24 June 2016 and annexures (Exhibit 5).
6) The witness statement of Ms Jeanette Bullock dated June 2016 (Exhibit 6).
7) The witness statement of Dr Henricus Theodorus Hofstede dated June 2016 and annexures (Exhibit 7).
8) The statement of Dr Henricus Theodorus Hofstede dated 13 May 2016 and attachments (Exhibit 8).
29 The Tribunal also has before it, and has considered and relied on, the following documents:
1) The SAT application dated 18 August 2015 and annexures.
2) The respondent's SIFC dated 27 May 2016.
3) The applicant's response to the respondent's SIFC dated 13 June 2016 (applicant's responding SIFC).
4) The respondent's draft without prejudice conditions dated 24 June 2016 (respondent's draft conditions).
5) The applicant's response to the respondent's draft without prejudice conditions dated 5 July 2016 (applicant's responding draft conditions).
6) The statement of agreed facts lodged 11 July 2016.
7) The respondent's submissions dated 13 July 2016.
8) The applicant's submissions dated 13 July 2016.
9) The respondent's revised draft without prejudice conditions dated 20 July 2016 (respondent's revised draft conditions).
10) The respondent's further submissions dated 20 July 2016.
11) The applicant's further submissions dated 22 July 2016.
12) Further evidence provided by the applicant at a directions hearing on 15 July 2016 (detailed below) which was not contested by the respondent.
30 Due to the late unanticipated unavailability of the respondent's advocate on the two days scheduled for hearing, on 11 July 2016 the Tribunal ordered that the matter be determined on the documents pursuant to s 60(2) of the SAT Act. However, upon reviewing the agreed statement of facts and the parties' final submissions, it became evident that certain factual information necessary to resolve the matter was not before the Tribunal. A directions hearing was convened on 15 July 2016 to discuss whether a further statement of agreed facts should be filed.
31 At that hearing, the parties agreed to brief oral evidence being provided immediately, with one further opportunity for written submissions based on that evidence. The applicant provided the following additional evidence, which the respondent did not contest:
• The proposed development is limited to a maximum annual total of 1,000 tonnes (3,000 cubic metres) of Fabfert to be delivered to and stored on the premises.
• Of the annual total of 1,000 tonnes (3,000 cubic metres) of Fabfert to be delivered to and stored on the premises, 500 to 600 cubic metres would be used on the premises by the turf farm. The balance would be onsold to and delivered by the applicant to other farms in the area.
• The periods when Fabfert would be used by the turf farm were January and February each year, and June and July each year.
• There was an arrangement between the applicant and the turf farm operator whereby in exchange for storing up to 1,000 tonnes (3,000 cubic metres) per annum of Fabfert on the premises, the applicant agreed to supply approximately 500 to 600 cubic metres of Fabfert per annum to the turf farm operator free of charge.
Relevant facts
32 Except where indicated, the relevant facts are largely uncontested between the parties and the Tribunal makes the following findings:
1) The applicant produces a product known as Fabfert from raw chicken manure at a facility at 134 Old Yanchep Road, Carabooda (Fabfert facility).
2) The maximum production of the Fabfert facility is approximately 1,000 tonnes (3,000 cubic metres) of Fabfert per annum.
3) The applicant has been inconsistent in statements as to whether the product Fabfert and its process comply with AS 4454, the Australian Standard for compost, soil conditioner or mulch. For example, the applicant's responding SIFC provides that the 'proposed development is to store organic fertilizer that complies with Australian Standard AS 4454-2003 Composts, Soil Conditioners and Mulches'. However, the applicant's responding draft conditions provides that '[w]e process the litter with a modified compost process which accelerates degradation. The product quality falls outside the scope of AS 4454 and it does not comply with the standard since the N content, notably ammonia, exceeds the standard.'
4) Accordingly, the Tribunal finds that the properties of Fabfert are as described in Exhibit 8 (annexed to these reasons as Annexure A). It does not necessarily (and is not intended to) comply with AS 44542012, the Australian Standard for compost, soil conditioner or mulch.
5) The proposed development involves delivery to and storage of Fabfert on the premises, which operates as a turf farm. The premises are not owned by the applicant and the turf farm is not operated by the applicant.
6) The premises have been used as a turf farm since 1987. In about 2012, the turf farm commenced using Fabfert instead of raw chicken manure as fertiliser for the production of turf. Fabfert was delivered to and stored on the premises in the same area where the raw chicken manure had been stored.
7) Pursuant to an arrangement between the applicant and the turf farm operator (whereby the applicant agreed to supply approximately 500 to 600 cubic metres of Fabfert to the turf farm operator in exchange for storing up to 1,000 tonnes (3,000 cubic metres) of Fabfert on the premises), Fabfert was delivered to the premises in excess of the amount required for the production of turf. The applicant arranged for the Fabfert which was surplus to the turf farm's requirements to be onsold and delivered to other farms in the in the Wanneroo area seasonally, dependent upon the crop.
8) In 2013, the respondent commenced receiving complaints from neighbouring properties in the Rural Resource zone (including a limestone quarry) about odour alleged to be emanating from Fabfert stored on the premises.
9) In October 2014, two samples of larvae taken from the premises evidenced fly breeding in the Fabfert stored on the premises.
10) In 2015, on the respondent's direction pursuant to s 214 of the PD Act, the applicant ceased delivery and storage of Fabfert on the premises.
11) The applicant's proposed development (which has been refined from time to time) seeks to resume delivery and storage of Fabfert on the premises. Fabfert is proposed to be delivered to the premises and stored in three windrows (each 10 by70 by2.5 metres). The maximum amount of Fabfert on the premises at any one time would be approximately 1,000 tonnes (approximately 3,000 cubic metres), and the amount of Fabfert delivered to the premises would be capped at 1,000 tonnes (approximately 3,000 cubic metres).
12) Of the Fabfert delivered to the premises, the turf farm operator will use an annual total of approximately 500 to 600 cubic metres on the premises seasonally (during the months of January and February, and June and July) as part of the production of turf.
13) During the period when Fabfert is not required for use on the premises, it will be stored in the windrows in varying quantities (but not exceeding a total of 1,000 tonnes (approximately 3,000 cubic metres) per annum). From time to time the applicant will facilitate delivery of up to 2,500 cubic metres of Fabfert from the premises to other farms in the in the Wanneroo area seasonally, dependent upon the crop.
14) Ms Bullock (general manager of the turf farm) gave evidence that Fabfert is required seasonally as part of the turf farm operations.
15) The Tribunal is satisfied on this evidence, and so finds, that the amount of Fabfert proposed to be used by the turf farm is approximately 500 to 600 cubic metres per annum, approximately 17 to 20% of the 1,000 tonnes (3,000 cubic metres) per annum proposed to be delivered to the premises. The balance (approximately 2,400 to 2,500 cubic metres per annum or about 80 to 83%) is proposed to be delivered to the premises solely for the purposes of storage pending onsale and delivery to other local farms.
16) The activities of the turf farm itself involve approximately 700 truck movements per annum. The turf farm employs 17 employees.
17) In the applicant's responding draft conditions, the applicant agrees to an annual limit of 210 deliveries to premises and 210 deliveries from premises, for a maximum of 420 truck movements per annum.
18) One person will be employed for the purposes of the Fabfert operations. Fabfert is not marketed or sold from the premises and no traffic impact (other than truck deliveries) is proposed.
Consideration
Whether the use of part of the premises to store Fabfert represents a change of use of the premises
33 The premises are currently zoned Rural Resource under the Scheme and have been used as a turf farm since 1987. Intensive agriculture (defined in the Scheme to include turf farms) is a permitted use in the Rural Resource zone. The applicant seeks development approval to store its entire annual production of Fabfert (about 1,000 tonnes, being 3,000 cubic metres) on the premises, with approximately 20% to be used by the turf farm operators on the premises during January/February and June/July for the purposes of producing turf, and about 80% to be onsold by the applicant during the 'off season' to other local growers.
34 Clause 6.11 of the Scheme provides that approval is required for any development on land zoned under the Scheme. 'Development' (as defined in s 4(1) of the PD Act) means the development or use of any land. For the purpose of the Scheme, the commencement, carrying out or change of a use on land is a development irrespective whether it involves carrying out building or other works: cl 6.2.1 of DPS 2. As the current use of the land is as a turf farm, the first issue for consideration is whether the proposed development represents a change of a use on land.
35 The position at common law is that a where a proposed discrete land use is an 'incidental use' (defined in the Scheme as a use of premises which is ancillary and subordinate to the predominant use), it will only require separate planning approval if the facts and circumstances demonstrate that a relatively separate use emerges: see Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 at [58] (PA) (Snowdale). As noted by the Tribunal in Optus Mobile Pty Ltd and City of Swan[2016] WASAT 72 (Optus Mobile) at [40]:
In summary, the term 'incidental' must be understood in accordance with its ordinary meaning: City of Swan v Taylor[2005] WASCA 88, at [67]. Thus it is necessary to identify the predominant use and then determine whether the proposed use is consequent upon such a use, or naturally attaching, appertaining or relating to the use. One also has to look at the nature of the proposed incidental use, its scale and regularity and the extent of the activities involved: Snowdale, at [59]. The question is one of fact and degree: Lizzio v Ryde Municipal Council(1983) 155 CLR 211, at 216217.
36 The Tribunal concluded in Optus Mobile at [48] that:
For the proposed development to be an 'incidental use', it is necessary that the proposed development involve a use that is related to, and ancillary or subordinate to, the current use of the site.
37 There does not appear to be any dispute between the parties that the soil in question requires treatment with fertiliser to produce turf, and 500 to 600 cubic metres of Fabfert per annum is sufficient for that purpose. The Tribunal is satisfied on the evidence that delivery of 500 to 600 cubic metres of Fabfert per annum, and limited storage of up to that amount pending use, would be a land use consequent upon use of the premises as a turf farm, and one which is ancillary, and subordinate to, the use of the premises as a turf farm. The evidence of the respondent's expert planner Mr Hockley at paragraph 72 of his statement supports this view:
In my view, if the stockpiled material was proposed to be stored at the Review Site for [the] sole purpose of being used for the existing turf farm operations, then this could be considered incidental to the existing use on the basis that it would function as a requisite element of the ongoing operation of the turf farm.
38 As noted in Goldrange Pty Ltd and City of Wanneroo [2011] WASAT 48 (Goldrange) at [40], as the Tribunal is not bound by the rules of evidence, it often hears evidence by experts within specialist fields about questions that are ultimately matters of statutory interpretation. The Tribunal, of course, must come to its own view, but it is often interested in the views informed by different disciplines.
39 In all of the circumstances, the Tribunal is satisfied that such use would fall within the meaning of incidental use and would not constitute a change of a use on land. Provided it did not otherwise constitute a 'development' as defined in s 4(1) of the PD Act, cl 6.1.1 of would not require a development application solely for this purpose.
40 The issue is whether this is changed by the fact that the proposed development provides for about 80% of the Fabfert to be delivered to the premises for the purpose of onsale by the applicant. Does this additional use render the proposed development a separate activity which is not related to, and ancillary or subordinate to, the current use of the premises?
41 In Snowdale, the applicant operated a large commercial poultry farm producing eggs. It commenced using a shed on the premises as a workroom to sort, grade and package an additional 95,000 eggs, and another shed to store new egg cartons, boxes, and trays. The eggs which were being packaged did not originate on the premises. Instead, they were transported to the premises from another farm operated by the applicant at another location, in one or two truck movements per day. The local authority issued a written direction to the applicant to cease this use of the sheds on the basis that such use constituted a development without approval contrary to the scheme. As noted by the Tribunal in Snowdaleat [59]:
In the inquiry into that issue [whether the facts and circumstances demonstrate a separate use], 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.
42 In Snowdale at [63], the Tribunal proceeded to weigh the nature of the activity, its scale and the 'regularity and extent' of the activities involved to determine whether, as a matter of 'fact and degree', the use was a separate land use:
… 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.
43 The applicant's submissions did not address the relevant issues in any meaningful way.
44 The respondent maintains that the nature of the proposed use, its scale and regularity and the extent of the activities do not support a finding that the proposed development involves a use that is related to, and ancillary or subordinate to, the current use of the premises.
45 The respondent notes that unlike the situation in Snowdale, the applicant and the turf farm are separate commercial entities, with different business operations. Whilst the turf farm is involved in the production and sale of turf, the applicant is involved in production of fertiliser and sale of the product to numerous farms in the local area. Whilst the turf farm clearly derives some commercial benefit from free access to 500 to 600 cubic metres of Fabfert per annum, it does not own the Fabfert stored on its premises and is not involved in (and does not otherwise benefit from) the on-sale of the product.
46 With regard to the scale, regularity and the extent of the proposed activities, the respondent notes that:
• the storage of materials will occur year round (rather than merely during the four months when Fabfert is used on the premises);
• deliveries to other growers will be for an extended period of time when compared with the deliveries of the 500 to 600 cubic metres needed for the purposes of the turf farm's operations; and
• the turf farm will use only about 20% of the Fabfert delivered to the premises, and the remaining 80% bears no real relationship to its functions as a turf farm.
47 For the Tribunal to consider the proposed development to be an 'incidental use', it must find that it involves a use that is ancillary and subordinate to the current use of the premises as a turf farm. This will involve consideration of the nature of the proposed incidental use, its scale and regularity and the extent of the activities involved: Snowdaleat [59]. The question is one of fact and degree: Lizzio v Ryde Municipal Council (1983) 155 CLR 211, at 216 217.
48 The current use of the property as a turf farm involves growing and harvesting turf. It employs 17 staff, and involves 700 truck movements per annum. It utilises part of a 141.21 hectare site (including up to three turf circles totalling approximately 78 hectares) for this purpose. The turf farm requires up to 500 to 600 cubic metres per annum of Fabfert to produce turf, but no evidence was tendered that Fabfert would not be made available to the turf farm through ordinary means (such as purchasing Fabfert at the commercial rate and delivery as needed).
49 The proposed development involves the use of 1 hectare of the 141.21 hectare site to store 3,000 cubic metres of Fabfert per annum. It employs one person and involves 420 truck movements per annum. There is no connection between the applicant and the turf farm except that pursuant to a barter arrangement, the turf farm would be permitted to use up to 500 to 600 cubic metres per annum of the Fabfert stored on the premises in exchange for the applicant's use of the premises for storage.
50 Having considered the materials before it, the Tribunal is persuaded by the respondent's arguments that the proposed development constitutes a separate use to the existing use of the premises as a turf farm. There is no connection between the existing use of the premises as a turf farm and the applicant's proposal to store Fabfert, other than the barter arrangement by which the turf farm will access (over a period of up to onethird of the year) only up to 20% of the product each year.
51 Although the scale of the proposed development in geographic size is small compared to the turf farm operations, the 'regularity and extent' of the activities are substantial, particularly the increase in truck movements to and from the property (from 700 to up to 1,120 per annum). Furthermore, it increases the period of time Fabfert will be present on the premises from about four months to year round. In such circumstances, the Tribunal is satisfied that, as a matter of 'fact and degree', the proposed use is a separate land use.
If the use does represent a change of use to the premises, what is the proper classification of that use?
52 In light of the Tribunal's findings in respect of the first issue, the second issue is: what is the proper classification for the proposed use. In Magic Hand Car Wash Franchisor Pty Ltd and Town of Claremont [2015] WASAT 133, at [15] and [16], the Tribunal made the following relevant comments concerning the process of interpreting town planning schemes:
More specifically to the town planning context, in Chiefari v Brisbane City Council [2005] QPELR 500, Wilson SC DCJ held at [9] and [10]:
These definitions are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. … They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and common sense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
That said, the words being defined are commonplace and it is obvious a careful attempt has been made in the definitions part of City Plan to circumscribe the meanings those common words are to have throughout it. Both parties accepted that, within the confined arena of a section of a planning scheme devoted to definitions of particular words and phrases, ordinary principles of statutory constructions ought to apply. Statements in other cases in this jurisdiction suggesting a less precise or insistent method of construing planning schemes will apply where, as often happens, parties can point to different parts or passages within those schemes which might touch a particular proposal; but when, as here, reference is being made to a small but central part of the Scheme which ascribes meanings to the terms it uses, general principles of statutory constructions should apply.
The Tribunal found in Optus Mobile Pty Ltd and City of Stirling[2008] WASAT 238 at [40]:
The latitude and flexibility that has been suggested with respect to the interpretation of planning instruments should not extend to, in effect, 'rewriting' DPS 2.
If the use of the land for a particular purpose is not specifically mentioned in Table 1 and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:
(a) determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted; or
(b) determine that the proposed use may be consistent with the objectives and purposes of the zone and thereafter follow the 'D' procedures of Clause 6.6.2 in considering an application for planning approval; or
(c) determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted.
54 The respondent submits that the proposed use should not be treated as an unlisted use under cl 3.3 of the Scheme because the use can reasonably be determined as falling within the interpretation of one of the use classes mentioned in Table 1, namely 'storage yard'. 'Storage yard' is defined in Sch 1 of the Scheme to mean '[a]ny land or buildings used for the storage of goods, equipment, plant or materials'. The respondent submits that the definition of 'storage yard' does not exclude items of a rural nature or to only apply to goods, equipment, plant and materials of an industrial nature.
55 The Scheme does not define 'storage', 'goods', or 'materials'. Clause 1.9.3 of the Scheme requires these words to be given their normal and common meanings. The most relevant definition of the noun 'storage' in the Online Macquarie Dictionary( accessed July 2016) is 'a place where something is stored'. The Online Macquarie Dictionary defines the noun 'goods' as 'articles of trade; wares; merchandise, especially that which is transported by land' and defines the noun 'materials' as 'the substance or substances of which a thing is made or composed'.
56 The Tribunal is satisfied that Fabfert falls within the meaning of 'goods'. It is an organic fertiliser which the applicant produces and sells as part of its business. It is merchandise, an article of trade. Furthermore, to the extent that the applicant intends to on-sell 80% of the Fabfert proposed to be stored on the premises, he is effectively using the premises as a storage yard from which the product will ultimately be delivered to its customers. The Tribunal is satisfied that storage of Fabfert on the premises as proposed can reasonably be determined as falling within that the use class 'Storage Yard'. Accordingly, it is not open to the Tribunal to deal with the proposal as an unlisted use under cl 3.3 of the Scheme.
57 As to whether 'Storage Yard' is the only use class, or even the 'best fit' of use classes, the Tribunal notes that the applicant provided no submissions concerning alternative use classes. However, there would appear to be only a limited number of use classes with any potential to apply that are capable of being approved in a Rural Resource zone. These include:
• intensive agriculture;
• rural use; and
• industry rural.
58 These use classes are identified in Table 1 of the Scheme as 'P' uses in the Rural Resource zone. A 'P' use is defined in cl 3.2.2 of the Scheme as a use class that is permitted, but which may be subject to conditions. The Tribunal is satisfied that none of the use classes identified as 'D' or 'A' uses in a Rural Resource zone have any potential to apply to the proposed development in the present facts.
59 Schedule 1 of the Scheme defines the use class 'intensive agriculture' as the use of any land or buildings used for trade or commercial purposes for:
(a) the production of grapes, vegetables, flowers, exotic and native plants, fruit and nuts (including market gardens); or
(b) the establishment and operation of plant and fruit nurseries; or
(c) the development of land for irrigated fodder product and irrigated pasture (including turf farms).
60 As discussed in the context of the first issue, storage of Fabfert used in intensive agricultural operations for the purposes of such operations would likely be an incidental use to the predominant use of intensive agriculture. Where the purpose, as in the present case, is independent from the predominant use, it must be independently assessed.
61 The Tribunal understands the applicant's position to be that the purpose of Fabfert is to be used in the course of intensive agricultural operations, and as such, should be considered as falling within the 'intensive agriculture' use class. However, the use class 'intensive agriculture' requires that the land or buildings in question be used for either the production of certain product, the operation of certain nurseries, or the development of land for irrigated fodder, pasture or turf. Whilst any of these operations may require Fabfert, the storage itself of Fabfert on such properties for the purposes of onsale does not squarely fall within the 'intensive agriculture' land use classification.
62 Furthermore, cl 3.2.3 of the Scheme provides that where in Table 1 a particular use is mentioned (such as storage yard), it is deemed to be excluded from any other use class which by its more general terms might otherwise include such particular use. For these reasons, the Tribunal is not satisfied that the proposed development falls within the 'intensive agriculture' use class. To conclude otherwise would necessarily involve 'rewriting' the Scheme by expanding the 'intensive agriculture' use class to include uses involving agricultural-related products. This does not appear to have been within the contemplation of the Scheme.
63 Schedule 1 of the Scheme defines the use class 'rural use' to mean:
agriculture, horticulture and may include aquaculture, and includes the raising of livestock and the retail sale of the produce of the property where satisfactory access and parking can be provided, and provided that any processing of the produce prior to sale can take place on site.
64 'Agriculture' is not defined in DPS 2, except in the context of 'intensive agriculture'. Nevertheless, cl 3.17.2(e) refers to both terms in a context which infers separate meanings (cl 3.17.2(e) refers to a 'presumption in favour of applications for agriculture and intensive agriculture in the agricultural resource areas identified in the Local Rural Strategy'). This suggests that when used on its own, agriculture is something other than 'intensive agriculture'. That 'something other' in the context of a 'rural use' use classification clearly includes the raising of livestock and the retail sale of the produce of the property.
65 Likewise, 'horticulture' is not defined in the Scheme. Clause 1.9.3 requires this word to be given its normal and common meaning. The noun 'horticulture' is defined in the Online Macquarie Dictionary as 'commercial cultivation of fruit, vegetables, and flowers, including berries, grapes, vines and nuts' as well as 'the science or art of growing fruit, vegetables, flowers or ornamental plants'. However, this is similar in essence to the definition of 'intensive agriculture'.
66 The Tribunal notes that the Scheme also distinguishes between 'intensive agriculture' and 'horticulture' in at least two provisions. Clause 3.17.1(a) refers to the objectives of the Rural Resource zone as the protection of 'intensive agriculture, horticultural and animal husbandry areas'. Clause 3.17.2(b) indicates that 'the priority uses [of the Rural Resource zone] are intensive agriculture, horticulture and basic raw materials extraction'. Again, this would infer a distinction between the meanings of 'horticulture' and 'intensive agriculture'.
67 Whether either 'agriculture' or 'horticulture' encompasses the storage of organic fertiliser produced in the locality and intended for sale in the locality is unclear. No submissions were made by either party concerning the meaning of this use class. In the absence of submissions or case references as to the meaning of this use class, the Tribunal is not satisfied that the proposed development falls within the 'rural use' class.
68 Finally, Sch 1 of the Scheme defines the use class 'industry rural' as follows:
Industry rural : means an industry handling, treating, processing or packing primary products grown, reared or produced in the locality, and a workshop used for the servicing of plant or equipment used for rural purposes in the locality.
- For this use class to apply, Fabfert must fall within the meaning of 'primary product'. The respondent's expert planner maintains that Fabfert is not a 'primary product'. Although no reasoning for this conclusion is provided, it would seem to be based on the Tribunal's definition of 'primary product' in Goldrange at [25] [27]:
A 'primary product' is therefore something produced that is a naturally occurring food, such as meat, grain or fish, or a naturally occurring thing, such as wool, cotton or wood. A 'primary product' is something produced in a primary industry, such as farming, forestry or mining, involving the growing, producing, extracting, etc, of natural resources.
Subject to one qualification, a 'primary product' does not include a new product produced by the processing of primary products, because a new product produced by the processing of primary products is a 'secondary product'. Subject to the same qualification, the processing of 'primary products' does not occur in a 'primary industry', but rather, occurs in a 'secondary industry'.
The qualification to the two preceding statements is that limited processing of a primary product in the form of harvesting, cleaning, cutting, packaging or other minor processing so as to enable it to be brought to market and sold is incidental to the production of the primary product and an incident or an incidental aspect of a primary industry. However, the qualification does not include the processing of a primary product to create another product, or the processing of two or more primary products together to create another product. Such processing of a primary product or of two or more primary products involves the production of a secondary product and occurs in a secondary industry.
70 The Tribunal notes, however, the exception within the Tribunal's definition in Goldrange. If the production of Fabfert falls within the meaning of 'other minor processing so as to enable it to be brought to market and sold' and such processing is 'incidental to the production of the primary product and an incident or an incidental aspect of a primary industry', it could fall within the meaning of a primary product. However, no expert evidence was tendered as to the production process itself, and no submissions were provided. Accordingly, the Tribunal is not in a position to make a finding that Fabfert is a primary product. For these reasons, the Tribunal is not satisfied that the proposed development falls within the use class 'industry rural'.
71 In the absence of another use class which is a 'better fit', the Tribunal is satisfied that the proper use classification for the proposed development is 'storage yard'. As noted by the respondent, Table 1 of the Scheme indicates that a 'storage yard' in the Rural Resource zone is an 'X' use. An 'X' use is a use class that is not permitted except where provision is made specifically for Council to approve an otherwise prohibited use. No such provision has been raised in the evidence and/or submissions before the Tribunal. The Tribunal is therefore satisfied that the respondent's decision to refuse to approve the proposed development on this basis was the correct and preferable decision.
Whether the proposed use meets the objectives of the Rural Resource zone, and whether the development application should be approved
72 The final issue - whether the proposed use meets the objectives of the Rural Resource zone - is relevant to whether a clause 3.3 unlisted use ought to be approved. Given the Tribunal's findings on the use classification above, it is not open to the Tribunal to approve the proposed development as an unlisted use, and it is unnecessary to consider this point. Nevertheless, the Tribunal makes the following comments.
73 The objectives of the Rural Resource zone are very clear: to protect intensive agriculture, horticultural and animal husbandry areas from incompatible uses or subdivision: cl 3.17.1(a) of DPS 2. To this end, there are a range of additional matters which a decision-maker must have regard to when considering applications for subdivision or planning approval in this zone, which are set out at cl 3.17.2(a) to cl 3.17.2(k). Intensive agriculture is considered a priority use (cl 3.17.2(b) of DPS 2) and rural residential development is considered an incompatible use within the zone: cl 3.17.2(d) of DPS 2. There is a presumption in favour of applications for agriculture and intensive agriculture subject to the acceptable management of any offsite environmental and land use impacts: cl 3.17.2(e) of DPS 2.
74 Furthermore, where planning approval is sought for 'sensitive uses' (including residential), the applicants must include with the application a written acknowledgment of the nature and legitimacy of any nearby existing or future priority use, and acceptance of the existence, or potential existence, of noise, dust, odour and other impacts which may be associated with such uses: cl 3.17.2(i) of DPS 2. A notation to such effect is also required on the title: cl 3.17.2(k) of DPS 2.
75 If the proposed development had been capable of classification as an unlisted use, the Tribunal considers it would likely have met the objectives of the Rural Resource zone. There is nothing in the proposed development which is incompatible or inconsistent with the provisions of cl 3.17, particularly cl 3.17.1 and cl 3.17.2 of the Scheme.
76 Furthermore, it is evident from the level of protection and priority afforded to agricultural development in the Rural Resource zone that residential amenity in this zone is a low priority. Residential uses are not encouraged. In such circumstances, it seems likely that the amenity concerns raised by existing residents in the area could be satisfied through conditions. Both the 2005 EPA Guidance Statement and the DER 2015 Draft Guidance Statement provide for a 500 metre buffer zone for turf farms, which likely would have been sufficient to address any amenity concerns in respect of the proposed development. As for the respondent's concerns regarding flies, this could have been adequately dealt with by the Fly Eradication Regulations pursuant to the Health Act 1911 (WA).
Conclusion
77 For the reasons set out above, the correct and preferable decision at the time of review is that the application for development approval DA 2014/186 should be refused, because on the proper use classification (namely 'storage yard'), it is a use which is prohibited in the Rural Resource zone.
Orders
78 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 9 March 2016 to refuse development approval for DA 2014/186 is affirmed.
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS K WHITNEY, MEMBER
ANNEXURE A
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