STARGAZE ASSET PTY LTD and CITY OF SWAN
[2017] WASAT 117
•8 SEPTEMBER 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: STARGAZE ASSET PTY LTD and CITY OF SWAN [2017] WASAT 117
MEMBER: MS D QUINLAN (MEMBER)
HEARD: 27 JUNE 2017
DELIVERED : 8 SEPTEMBER 2017
FILE NO/S: DR 312 of 2016
BETWEEN: STARGAZE ASSET PTY LTD
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Preliminary issue - Whether capable of approval - Classification of use class - Interpretation of scheme - Dominant and subservient uses - Separate and distinct uses - Industry general - Industry light - Use not listed
Legislation:
City of Swan Local Planning Scheme No 17, cl 4.3, cl 4.4, cl 4.4.2, Sch 1, Pt B
Environmental Protection Act 1986 (WA), Pt 5
Interpretation Act 1984 (WA), s 18
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Review dismissed and decision refusing proposed development affirmed
Summary of Tribunal's decision:
Stargaze Asset Pty Ltd (applicant) made an application to the City of Swan (respondent) for development approval to 'BioRemediate Contaminated Soils' in order to fill parts of previously excavated areas (proposed development) on land the applicant owns at Lot 5 (91) Walyunga Road, Bullsbrook (subject site). The subject site is located in the Landscape zone under the City of Swan Local Planning Scheme No 17 (LPS 17).
In following Gull Petroleum v Nashville Investments [1999] WASCA 12; (1999) 102 LGERA 431, the Tribunal found that the proposed development involves concurrent but distinct uses on the subject site and the Tribunal declined to 'lump' independent uses together into one dominant use for the purposes of a classification of use not listed (which was permitted at the subject site if the objectives of the Landscape zone were met). The Tribunal found that the character of the two distinct uses, being the bio remediation of contaminated soils and the rehabilitation of the subject site by way of filling of land, each remain unaffected by the fact that the one subject site is shared between them. As found in Gull Petroleum v Nashville Investments, if either distinct use is not permitted at the subject site, the proposed development is not capable of being approved.
The Tribunal found that the bioremediation of contaminated soils, being a distinct use component of the proposed development, fit fairly and squarely into the 'industry' definition and therefore, the proposed development cannot be found to be a use not listed pursuant to cl 4.4.2 of LPS 17. The Tribunal further found that the description of the proposed development best fit either within the 'industry - general' or 'industry - light' use class. It was immaterial for the purposes of determining the issue in dispute whether it was 'industry - general' or 'industry - light', as both are 'X' uses (not permitted) in the Landscape zone. Consequently the Tribunal’s determination of the preliminary issue in dispute was that the proposed development was not capable of approval under LPS 17.
Category: B
Representation:
Counsel:
Applicant: P Dobson
Respondent: C Slarke
Solicitors:
Applicant: Hotchkin Hanly
Respondent: McLeods
Case(s) referred to in decision(s):
BP Australia Pty Ltd v City of Perth [1994] WATPAT 2; (1994) 10 SR (WA) 110
Chiefari v Brisbane City Council [2005] QPELR 500
Comcare v Mooi (1996) 69 FCR 439
Eclipse Resources Pty Ltd v State of Western Australia (No 4) [2016] WASC 62; (2016) 215 LGERA 329; (2016) 307 FLR 221
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
Stargaze Asset Pty Ltd and City of Swan [2016] WASAT 106
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 16 May 2016, Stargaze Asset Pty Ltd (applicant) made an application to the City of Swan (respondent) for development approval to 'Bio-Remediate Contaminated Soils' in order to fill parts of previously excavated areas (proposed development) on land the applicant owns at Lot 5 (91) Walyunga Road, Bullsbrook (subject site). The proposed development will be detailed further later in these reasons.
On 4 October 2016, under delegated authority from the Council of the respondent, the Manager, Statutory Planning, determined that the proposed development should be refused for the following reasons:
The subject application for unapproved development is a [sic] considered to be more appropriately classified as "Industry-General", in accordance with Local Planning Scheme No. 17. Pursuant to the LPS17 Zoning Table, Industry-General is an 'X' use within the Landscape zone, which is a use Not Permitted.
On 14 October 2016, the applicant sought a review in the Tribunal of the respondent's refusal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
On 17 March 2017, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the Tribunal invited the respondent to reconsider its decision.
The report provided by the Executive Manager, Planning and Development of the respondent for the Council's consideration in the reconsideration recommended that the proposed development be approved subject to conditions on the basis that the use can be classified as a use not listed. Contrary to that recommendation, on 12 April 2017 the Council of the respondent upon reconsideration again refused the development on the basis that the use should be classified as 'industry general', which is a prohibited use at the subject site. The reconsideration decision of the respondent is now the subject of the review in the Tribunal.
The parties have greatly assisted the Tribunal in determining these proceedings by providing agreed facts and an agreed bundle of documents. The parties agree as to all the relevant facts and the applicable planning framework. The dispute between the parties arises in these proceedings as to the appropriate use classification for the proposed development at the subject site.
The proposed development
The proposed development involves:
a)constructing a treatment area totalling 6,000m², comprised by two lined areas each of 2,000m², with the balance being comprised by holding ponds, cell separation bunds and boundary bunds; and
b)using the lined areas to stockpile and treat acid sulphate soils and Class III contaminated soils respectively.
The treatment areas are designed to treat a combined total of 100,000 tonnes of material per year.
The receiving and treatment of acid sulphate soils (ASS) will occur as follows:
a)ASS may be delivered to the subject site from a site operated by Brajkovich Demolition and Salvage Pty Ltd (BDS) or by a third party. The party delivering ASS to the subject site must provide to BDS an ASS management plan approved by the Department of Water and Environmental Regulation (DER) which indicates the proposed treatment plan and liming rates for the ASS. This will enable BDS to confirm the volume and size of lime aggregate required to fulfil the effective neutralising value needed to successfully remediate the ASS.
b)ASS will be offloaded to the remediation bed in 'job load' stockpiles.
c)If the ASS needs to be dried, it will be spread out to a depth of approximately 500 millimetres.
d)The ASS will be laid out in windrows within the treatment area, and lime (in the form of crushed limestone aggregate) is applied to the windrows in accordance with the applicable management plan, in order to neutralise the acidity.
e)The lime will be mixed with the ASS by a front end loader or similar machine. The soil will be agitated every three days to encourage neutralisation throughout the stockpile, over an estimated period of five to ten days.
Following the remediation process, the soil is tested. The remediation is completed once the soil contaminants are within the levels for Class I inert material as defined in Landfill Waste Classification and Waste Definitions (1996).
Following successful remediation of the ASS, the soil will be removed from the treatment area and used to fill parts of the subject site which have previously been excavated, and which require rehabilitation.
The receiving and treatment of Class III impacted soils will occur as follows:
a)Class III impacted soils may be delivered to the subject site from a site operated by BDS or by a third party. BDS will be advised in advance of any proposed delivery of the volume and composition of the material to be delivered. Soil received is to generally be accompanied by a waste classification analysis, to enable BDS to determine the treatment required.
b)The Class III impacted soil is offloaded to the remediation bed in 'job load' stockpiles.
c)If soil is received without a waste classification analysis, it will be tested to see whether it exceeds the limits of Class 3 contaminant of leachate concentrations (in which case it is rejected and removed from the site).
d)Materials accepted will be laid out in windrows. If the material is comprised by heavy clay, clean sand fill or saw dust will be mixed with it to aid aeration.
e)The soil material will be blended and agitated weekly by front end loader to facilitate oxygenation which in turn aids in the removal of contaminants.
f)It is anticipated the level of contamination of most material will be reduced over a period of six weeks, sufficient to allow it to be re classified as Class 1 inert material.
g)Where the contaminated material does not respond adequately to treatment, it will be removed from the subject site and disposed of offsite. No material shall remain on the treatment area for more than eight weeks.
Following successful remediation of the Class III impacted soil, it will be removed from the treatment area and used to fill parts of the subject site which have previously been excavated, and which require rehabilitation.
The DER has issued a draft works approval for the construction of the works which are required to carry out the proposed development.
A licence will be required under Pt 5 of the Environmental Protection Act 1986 (WA) for the proposed development to operate as prescribed premises falling with Category 61A.
Background facts
The site is leased by BDS, an entity related to the applicant, and which is in the business of construction and demolition operations.
By an application for development approval made on 3 August 2012 the applicant sought approval to crush and screen inert construction and demolition waste materials for use as fill to rehabilitate a sand excavation area on the subject site. The process is summarised as follows:
(a)The waste material comprises a mixture of bricks, tiles, concrete, sand, gravel, PVC piping, mixed steel and some soils. The materials do not include toxic materials.
(b)The waste materials are primarily sourced from BDS' own demolition operations throughout the metropolitan area, with additional material accepted from other demolition operators.
(c)The waste materials are transported to the site via semi-tippers where they are stockpiled and sorted.
(d)Once sorted and stockpiled the materials are crushed and screened on site to remove a small percentage of material that is inappropriate for use as fill material (such as steel, plastic and green waste).
(e)The crushed and screened fill material is then placed in the rehabilitation area to reinstate the volume of sand that has historically been removed from the site and return the site to preexcavation levels.
On 26 October 2012 the respondent granted approval No. DA261/2012/A (existing approval), subject to a number of conditions.
Planning framework
The subject site is located in the district of the City of Swan and is subject to the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme).
Under the Metropolitan Region Scheme, the subject site is zoned 'Rural'. Under LPS 17 the subject site is zoned 'Landscape'.
Clause 4.3 of LPS 17 includes a Zoning Table which prescribes whether a use class in a particular zone is a 'P' (permitted) use, a 'D' (discretionary) use, an 'A' (special notice required) or 'X' (not permitted) use. The Zoning Table in LPS 17 provides that within the Landscape zone 'industry-general' and 'industrylight' are 'X' uses.
Clause 4.4 of LPS 17 provides that the Zoning Table should be interpreted as follows:
4.4.1Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
4.4.2.If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class the local government may
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
Relevant to these proceedings, and agreed between the parties, the Scheme includes in Sch 1, Pt B Land Use Definitions, the following definitions:
'industry' means premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes the use of premises on the same land used for
(a)the storage of goods;
(b)the work of administration or accounting;
(c)the selling of goods by wholesale or retail: or
(d)the provision of amenities for employees;
incidental to any of those industrial operations;
...
'industry general' means an industry other than a cottage, extractive, light, mining, noxious, rural or service industry;
'industry light' means an industry
(a)in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality; and
(b)the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services;
Cases
The starting point for the interpretation of LPS 17 is that it has the force of law and the ordinary principles of statutory interpretation apply.
Section 18 of the Interpretation Act 1984 (WA) provides that:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
His Honour Justice Beech recently considered the principles of statutory construction in Eclipse Resources Pty Ltd v State of Western Australia (No 4) [2016] WASC 62; (2016) 215 LGERA 329; (2016) 307 FLR 221 at [539]-[541] (Eclipse Resources v State of Western Australia (No 4)) as follows:
In City of Kwinana v Lamont, the court said:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
The language of the words of the statute must be interpreted having regard to their context. Part of that context is the purpose of the legislation insofar as it may be discerned from what the legislation says, as distinct from any assumption about the desired or desirable reach or operation of relevant provisions. A statutory purpose may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of the statute is not something which exists outside the statute. It resides in its text and structure, albeit it may identified by reference to rules of construction.
(footnotes omitted)
More specifically to the town planning context, in Chiefari v Brisbane City Council [2005] QPELR 500 Wilson SC DCJ held at [9]-[10] that:
These definitions are included in City Plan to provide an explanation of the meaning of terms used in the Scheme. They are obviously of general application and intended to cover a variety of circumstances. 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 commonsense, 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 construction 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 construction should apply.
The Tribunal found in Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 at [40] that '[t]he latitude and flexibility that has been suggested with respect to the interpretation of planning instruments should not extend to, in effect, "rewriting" DPS 2.'
It has been held that a single development application might properly propose concurrent but distinct uses on the one site and it is important not to lump independent uses into one dominant use for the purpose of classification: see Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431 at [48] (Gull Petroleum v Nashville Investments) citing at [53] BP Australia Pty Ltd v City of Perth [1994] WATPAT 2; (1994) 10 SR (WA) 110 at 114.
The Full Court held in Gull Petroleum v Nashville Investments at [52] as follows:
... The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation. Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them there is no reason why the categorisation of each use should be any different than if each had been effected from its own site. If either use is unacceptable within the particular location it would not be approved. That consequence would not be altered by the fact that another, permitted, use would be effected from the same site.
The applicant provided the Tribunal with two authorities in support of the applicant's submission that a literal approach to interpretation of a definition should not be taken and that regard may still be had to the ordinary meaning of a word defined in a statute: see Comcare v Mooi (1996) 69 FCR 439 at 444 (Comcare v Mooi) citing Claydon v Bradley [1987] 1 All ER 522 at 526 (Claydon v Bradley).
In the Tribunal's decision in Stargaze Asset Pty Ltd and City of Swan [2016] WASAT 106 (Stargaze No 1) the applicant was unsuccessful in its bid to delete condition 1 of the existing approval. Whilst the proposed amended development in Stargaze No 1 was different to the proposed development in the present proceedings, many of the submissions made are repeated here and the findings by the Tribunal in Stargaze No 1 at [31]-[37] are relevant:
On the face of it, the activities allowed under the existing development approval involve the processing of demolition and construction waste so as to create an end product. Putting aside for a moment what the end product is and what it is intended to be used for, the use of the site for such an activity falls squarely into the definition of 'industry' in LPS 17. The same activity (crushing and screening demolition and construction waste to create an end product) was considered to be properly characterised as 'industry' under a local planning scheme which defined that term in the same way as in LPS 17 in Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134, at [32] (Terra Spei).
However, it would seem that the respondent, at the relevant time, considered that the activities contemplated by the existing development approval, if done for the purpose of creating fill to rehabilitate the site, were of such a character that this use of the site no longer fit within the meaning of 'industry' for the purposes of LPS 17. While I have some hesitation in accepting this, the correctness or otherwise of the respondent's characterisation of the land use authorised by the existing development approval is not strictly before the Tribunal. However, what is before the Tribunal is the proper characterisation of those same activities done for the purpose of creating fill not just to rehabilitate the site, but also to rehabilitate other land on an ongoing basis.
The applicant submits that the purpose of the crushing and screening activities, whether restricted to use on the site, or approved for use on land outside the site, is what changes the nature of the use from an 'industry' use into a 'use not listed'. It is submitted that the inclusions in the definition of 'industry' in LPS 17, of, for example, the selling of goods, and providing amenities for employees, highlight that, in accordance with the ordinary understanding of the term, for a use to constitute 'industry' within the meaning of LPS 17, the relevant activities must be conducted for commercial gain. The applicant's submission is that creating fill for the purpose of rehabilitation of land operated by related entities does not involve commercial gain.
In GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353 (GMF), the Tribunal considered whether the crushing and screening of material in order to recycle that material, for use of some material in the applicant's own business and to give the rest of the material away, was 'in the course of trade or business for gain' and therefore properly characterised as 'industry' in the relevant local planning scheme. In that case, the Tribunal was considering a definition of 'industry' that was different to the definition of that term in LPS 17. In the local planning scheme being considered in GMF, 'industry' was relevantly defined as 'the carrying out of any process in the course of trade or business for gain[.]': see GMF, at [29]. That that definition is substantially different to a definition of 'industry' that is identical to the one in LPS 17 was confirmed in Terra Spei, at [70] [71]. Of note, however, was that the Tribunal, in considering the concept of 'gain', determined that a proposal that allowed the applicant to reduce the costs it would otherwise incur sending demolition and other waste to landfill, fit within that concept: see GMF at [35] [36].
The submission made by the applicant that there must be an element of commercial gain for an activity to be properly classified as 'industry' under LPS 17 is not persuasive. Such an interpretation requires the implication of a number of words that do not exist in the text of the Scheme. I am not satisfied that there is any acceptable basis to do so.
The text used to define 'industry' in Sch 1 of LPS 17 is plain. It focuses on specified types of operations and the use of premises (which in turn is defined, in Pt A of Sch 1 of LPS 17, to mean land or buildings) for those operations. When one further considers the various types of industrial uses in the Scheme (that is, 'industry - cottage', 'industry - extractive', 'industry general', 'industry - light', 'industry - mining', 'industry - noxious', 'industry - rural' and 'industry - service') it is apparent that, to a large degree, the focus in the definitions remains on those operations having regard to either the type of in-put or end product of the operations, or the impacts on amenity of the operations.
I am not satisfied that the definition of 'industry' in LPS 17 requires there to be any element of commercial gain before activities that would otherwise fit within the terms of the definition are to be properly classified as falling within that type of land use. I note that, if there were such a requirement, I am not persuaded that the proposed amended development does not involve some aspect of commercial gain. The ability to obtain fill from a related company rather than having to purchase it would surely mean that there is a resulting cost saving or commercial gain. It also seems apparent that the ability to re-cycle demolition and construction waste to create a useful end product would also result in a cost saving from not having to pay for the waste to be taken by a waste facility.
Issue to be determined
The issue for determination in these proceedings is whether the proposed development is capable of approval under LPS 17.
Whilst, the issue for determination by the Tribunal may be considered a preliminary issue, the determination of this issue will finally resolve these proceedings. This is because the parties agree that if the Tribunal concludes that the proposed development is either 'industry general' or 'industry - light', which are both 'X' uses under LPS 17, it is not capable of approval under LPS 17. However, if the Tribunal concludes the development is neither 'industry general' nor 'industry - light', and is a use not listed, the respondent does not oppose the proposed development submitting that it may be approved by the Tribunal, subject to conditions.
Applicant's submissions
The applicant submits that the rehabilitation of the subject site under the existing approval allows the applicant to bring waste on to the subject site, then engage in a process of crushing and screening in order to create clean fill to be used to reinstate the volume of sand that has been historically excavated in order to return the subject site to pre-excavation levels. The applicant submits that the rehabilitation of the subject site in this way is consistent with the objectives of the Landscape zone.
The applicant submits that the respondent's statutory construction of the definitions of 'industry - general' and 'industry - light' are unduly literal and do not sit comfortably with the use of the word 'industry' in its context within the Scheme.
The applicant submits that, on its proper construction, the definition of 'industry' applies to commercial activities concerned with the production or transformation of goods or materials or their commercial exploitation and they are not directed to ensuring that waste placed on land, as part of its rehabilitation, is suitably clean.
The applicant further submits that all of the various 'industry' definitions in the Scheme make plain the necessary aspect of commercial production, exploitation or transformation at which the various industry uses are directed. The applicant submits further that potentially contaminated soil, treated to remove contaminants, for use as landfill on site does not produce a new product, transform it into another product or involve exploitation of a resource. Therefore, submits the applicant, it does not constitute 'industry'. The applicant relies on the submission that the crushing and screening activities that form part of the existing approval, and which might be said to constitute 'processing', do not constitute 'industry'.
Respondent's submissions
The respondent submits that the use to which the product of the bioremediation activities is put is not relevant to the classification exercise and that the Scheme definition of 'industry' is focussed on the nature of the activities carried out on land, not on how or where the product of the activities is used.
The respondent submits that the proposed development is better characterised as involving two distinct land uses, namely:
a)bioremediation of contaminated soils (which is either 'industry general' or 'industry light'); and
b)filling of land (a use not listed).
The respondent submits the fact that these two uses are the subject of a single application should not obscure the classification exercise. The respondent submits, whilst it may be convenient or commercially advantageous to use the remediated soil to fill the subject site, that:
a)the carrying out the industrial activities on the same land as filling does not create a new, previously unrecognised land use; and
b)the bio-remediation and filling can each be carried out independently of the other, and combining the two uses on the same site alters neither the activities themselves, nor the character of the uses.
Finally, the respondent submits that, pursuant to cl 4.4.2 of LPS 17, a use not listed can only arise where the use 'is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of any other use class'. The respondent submits that the bioremediation of contaminated soils fits fairly and squarely into the 'industry' definition and therefore, the proposed development cannot be found to be a use not listed.
Consideration
It is clear from the reasons which follow that the Tribunal is persuaded, and in many respects adopts, the submissions of the respondent and is not persuaded by the submissions of the applicant.
The applicant provided the Tribunal with two authorities in support of the applicant's submission that a literal approach to interpretation of a definition should not be taken and that regard may still be had to the ordinary meaning of a word defined in a statute: see Comcare v Mooi at 444 citing Claydon v Bradley at 526. The Tribunal is not persuaded by that submission. The Tribunal is of the view that neither Comcare v Mooi nor Claydon v Bradley enunciate any principle of statutory interpretation that applies to the context of interpretation of a local planning scheme, unlike for instance Eclipse Resources v State of Western Australia (No 4)). Further, to the extent that Comcare v Mooi or Claydon v Bradley, have any application as a matter of principle, the Tribunal distinguishes them and declines to follow them in this instance.
It could be argued that the purpose of a defined term in any statute is to impose a meaning on that term that clarifies the context of that term for that statute that departs from the plain and ordinary meaning of the term. Moreover in the town planning context, a scheme that defines use classes is intending for that definition to be an imposed definition that makes clear what use or activity is, or is not, permitted to be carried out which is defined in the context of that scheme and which may depart from the plain and ordinary meaning of the term. Of course, principles of statutory interpretation still apply to understanding the defined term in the context of that scheme and terms that are not defined in the statute.
The Tribunal agrees and adopts the same reasoning of the Tribunal in Stargaze No 1 in relation to the applicant's submissions concerning commercial gain. The Tribunal finds that there is a commercial gain or advantage to the applicant in relation to the proposed development in that there is clearly a cost saving in relation to the way that the rehabilitation of the subject site is proposed to occur.
The applicant submits that the rehabilitation of the subject site under both the existing approval and the proposed development are consistent with the objectives of the Landscape zone. Whilst the Tribunal is to have due regard to the history of the subject site, the fact that the existing approval may have been considered by the respondent to be consistent with the Landscape zone, does not bind the Tribunal in relation to the proposed development. In any event, a finding as to whether the proposed development is consistent with the objectives of the Landscape zone only arises if the Tribunal finds that the proposed development is a use not listed.
The respondent submits that there are two distinct uses proposed at the subject site as follows:
a)the bioremediation of contaminated soils (which is either 'industry general' or 'industry light'); and
b)filling of land (which is a use not listed).
The applicant submits that the dominant use at the subject site is the rehabilitation of the subject site by way of filling the land and that the bioremediation of contaminated soils is the subservient use.
In following Gull Petroleum v Nashville Investments, the Tribunal finds in the circumstances here that the proposed development involves concurrent but distinct uses on the subject site and the Tribunal declines to lump independent uses together into one dominant use for the purposes of a classification of use not listed. The Tribunal finds that the character of the two distinct uses, being the bioremediation of contaminated soils and the rehabilitation of the subject site by way of filling of land, each remain unaffected by the fact that the one subject site is shared between them. As found in Gull Petroleum v Nashville Investments, if either distinct use is not permitted at the subject site, the proposed development is not capable of being approved. That consequence would not be altered by the fact that another use, which may be permitted, would be occurring at the subject site.
The Tribunal finds that the bio-remediation of contaminated soils, being a distinct use component of the proposed development, fits fairly and squarely into the 'industry' definition and therefore, the proposed development cannot be found to be a use not listed. Pursuant to the operation of cl 4.4.2 of LPS 17, a use not listed can only arise where the use 'is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of any other use class'.
The Tribunal further finds that the description of the proposed development best fits either within the 'industry - general' or 'industry light' use class. It is immaterial for the purposes of determining the issue in dispute whether it is 'industry - general' or 'industry - light', as both are 'X' uses (not permitted) in the Landscape zone.
Consequently the Tribunal’s answer to the issue in dispute is that the proposed development is not capable of approval under LPS 17.
Conclusion and Orders
Accordingly, the Tribunal finds that the correct and preferable decision on review is to refuse to approve the proposed development and orders as follows:
1.The review is dismissed.
2.The decision of the respondent on 12 April 2017 refusing the proposed development is affirmed.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D QUINLAN, MEMBER
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