WISEOWL INVESTMENTS PTY LTD and SHIRE OF BUSSELTON - [2010] WASAT 150

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WISEOWL INVESTMENTS PTY LTD and SHIRE OF BUSSELTON [2010] WASAT 150

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR J JORDAN (MEMBER)

HEARD: 28 AND 29 SEPTEMBER 2010

DELIVERED : 14 OCTOBER 2010

FILE NO/S: DR 98 of 2010

BETWEEN: WISEOWL INVESTMENTS PTY LTD
Applicant
AND
SHIRE OF BUSSELTON
Respondent

Catchwords:

Town planning - Development - Microbrewery - Unlisted use - Viticulture and Tourism zone - Yeast migration - Adjoining biodynamic vineyard and winery relying on indigenous or wild yeasts - Whether there is likely to be an adverse impact on adjoining winery by reason of yeast migration of cultured yeast from brewery - Precautionary principle - Yeast Containment Management Plan - Provision of local planning scheme that 'No person shall use or develop the land between the building setback line and the road alignment for any purpose other than [specified activities]' - Whether provision prescribes 'a standard ... with respect to ... setbacks ... ' which is amenable to discretion or a prohibition upon development - Whether discretion to vary standard should be exercised to allow

carparks between building setback line and road - Practice and procedure - Expert evidence - Listing member to chair expert witness' conferral to draft and settle joint statement

Legislation:

Planning and Development Act 2004 (WA), s 241(1), s 252(1)
Shire of Busselton Town Planning Scheme No 20, cl 13(1)(a)(iii), cl 22, cl 34(1), cl 34(1)(a), cl 84, cl 84(3), cl 84(5)
State Administrative Tribunal Act 2004 (WA), s 31, s 31(3), s 46(1)
Town of Vincent Town Planning Scheme No 1, cl 40(1)

Result:

Conditional development approval granted for microbrewery
Discretion exercised to allow a carpark between the building setback line and the road alignment with a minimum setback of 50 metres from the road

Category: B

Representation:

Counsel:

Applicant: Mr PG McGowan
Respondent: Mr A Roberts

Solicitors:

Applicant: Freehills
Respondent: McLeods

Case(s) referred to in decision(s):

O'Donovan and Town of Vincent [2005] WASAT 120
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a development application for approval of a building containing a cellar door, a restaurant and a microbrewery and ancillary development including two carparks on a property on Caves Road between Dunsborough and Margaret River. The site adjoins a biodynamic vineyard and winery that utilises indigenous or wild yeasts occurring naturally on that property to induce fermentation. The proposed carparks are a paved carpark, set back 30 metres to 80 metres from Caves Road, and a grassed 'overflow' carpark, set back 10 metres to 30 metres from Caves Road. A provision of the local planning scheme states that 'No person shall use or develop the land between the building setback line and the road alignment for any purpose other than a means of access, landscaping, dam construction … or a rural activity permissible in the zone'. However, another provision of the local planning scheme allows the approval of a development that 'does not comply with a standard prescribed by the Scheme … with respect to … setbacks … '.
The Shire of Busselton refused to grant approval for the development. The applicant sought review of this decision by the Tribunal. When invited to reconsider its decision, the Shire of Busselton approved the construction of the building and the cellar door and restaurant, subject to conditions including a requirement that the carparks must be set back from the road in compliance with the local planning scheme, but refused to approve the microbrewery.
The owner of the adjoining vineyard and winery was concerned that cultured brewing yeast used to induce fermentation in the microbrewery would migrate to the vineyard and contaminate the grapes. However, the evidence of the engineer contracted to supply the brewery system, a chemist and lecturer of brewing science, and the joint evidence of two eminent microbiologists (one of whom was called by the Shire of Busselton) showed that it is extremely unlikely that brewing yeast would escape and migrate to the vineyard. This is because the proposed beer making process is 'highly contained, sterile and hygienic' and 'provide[s] a complete, closed circuit brewery system with complete containment of product and any yeast residue within the product for heat treatment and yeast cell destruction'.
The Tribunal also found that the microbrewery is consistent with the objectives of the Viticulture and Tourism zone and the other elements of the planning framework. This is because the microbrewery is a tourist

facility of a scale and nature appropriate in a rural setting, is proposed on a small part of a site that is otherwise developed with vines and approved for development of a cellar door and a restaurant, and is compatible and unlikely to conflict with, jeopardise or harm viticulture in the locality in general or the adjoining vineyard and winery in particular. The Tribunal therefore determined that the microbrewery warrants conditional development approval.

In relation to the proposed carparks, the Tribunal determined that while there is discretion under the local planning scheme to vary the setback standard of 100 metres from the road, the discretion should not be exercised to the extent required to approve the carparks. Rather, the Tribunal determined that the 'overflow' carpark should be eliminated and the paved carpark should be relocated to the south and west of the building and reconfigured to have a minimum setback of 50 metres from the road. Such a relocated and reconfigured carpark would be visually subordinate to the building and landscape setting and, unlike the proposed carparks, would not be a dominant feature in the landscape. The carpark should be 'landscaped' by planting and maintaining grapevines in the setback area. If an 'overflow' carpark were necessary, a development application could be made to locate it at the rear of the building.

Introduction

On 7 October 2009, Wiseowl Investments Pty Ltd (Wiseowl) submitted a development application to the Shire of Busselton (Council or Shire) seeking approval under the Shire of Busselton Town Planning Scheme No 20 (TPS 20 or Scheme) for a development described as 'new cellar door, restaurant and microbrewery' at Lot 100 Caves Road, Wilyabrup (site). The site is zoned Viticulture and Tourism under the Scheme and is located in the southern part of the Shire between the towns of Dunsborough and Margaret River.
The site has a frontage of approximately 587 metres to Caves Road and an area of approximately 14.19 hectares. The site is generally cleared and contains approximately 6 hectares of immature grapevines and two dams.
Adjoining the site to the south is Cullen Wines vineyard and winery, which comprises 28 hectares of vines, winery, cellar door, restaurant/function centre and tourist accommodation for up to 11 guests. Adjoining the site to the north is the residential property of Ms Vanya Cullen, the Managing Director of Cullen Wines and the daughter of its founders, Ms Diana Cullen AM and Dr Kevin Cullen AM.

Mr Peter Goff, a consultant town planner called by Wiseowl, gave the following evidence in relation to the area, which was not questioned or contradicted and which we accept:
The Margaret River area, including the subject locality, is noted for its wines, restaurants, galleries, tourist farms, chocolates and other produce and more recently, microbreweries with five microbreweries (Bush Shack Brewery, Bootleg Brewery, Duckstein Brewery, Cowaramup Brewing Company and Colonial Brewing Company) and two more proposed including the subject application and another proposal near Eagle Bay. A mix of microbreweries in the area together with wineries, cellar door sales and restaurants appears consistent with the social values of the area.
Three of the five existing microbreweries referred to by Mr Goff are located within the Shire and the other two are located within the adjoining Shire of AugustaMargaret River.
The principal elements of the development application are:
(a)a single building described by Mr Stephen Allerding, a consultant town planner called by the Shire, as being 'of a high visual standard', set back 80 metres from Caves Road, containing:
(i)cellar door sales facility in the front section of the building;
(ii)restaurant with dining terrace in the central part of the building overlooking the larger of the two dams, which has the appearance of a small lake, to the north;
(iii)microbrewery, with a counter to serve approximately 10 patrons and table seating for 16 patrons, in the northeastern part of the building; and
(iv)associated kitchen, storeroom, office and public toilets;
(b)two parking areas for patrons located between the building and Caves Road, the first sealed and comprising 50 car bays, set back between 30 metres and 80 metres from Caves Road, and the second grassed and comprising

30 'overflow' bays, set back between 10 metres and 30 metres from Caves Road;
(c)alternative treatment unit for the onsite disposal of effluent;
(d)landscaping; and
(e)driveway providing access to the development from Caves Road.

The Shire notified the proposed development to nearby landowners and received four letters of objection, including one from Ms Cullen and one from a development consultant on behalf of Cullen Wines. Approximately two weeks before the Council was scheduled to consider the development application on 24 March 2010, the Shire received a further letter of objection from Ms Cullen supported by nine letters from winemakers, wine writers and a brewer.
On 24 March 2010, the Council received its planning officer's report recommending that it should grant development approval for the proposed development. The officer made the following comments in relation to the microbrewery:
The MicroBrewery component is consistent with the objectives of the Viticulture and Tourism zone, as it is considered to be [a] tourism based use complementing similar activities in the region. As is demonstrated throughout the Shire [, there are] a number of breweries, within close proximity to nearby viticultural activities, operating without incident. An example of this is the Duckstein Brewery at Saracen Estate although on a much larger scale. Other breweries such as Bootleg and Bush Shack have been notably popular with tourists and have become significant tourist attractions in their own right.
At its meeting on 24 March 2010, the Council rejected its officer's recommendation and resolved as follows:
That the application submitted on 7 October, 2009 proposing a Cellar Door, Restaurant and MicroBrewery for Lot 100 Caves Road, Wilyabrup is declined as the MicroBrewery may jeopardise the agricultural use of adjoining land and the landscape values of the site and locality to the extent that it is inconsistent with State Planning Policy 6.1 and therefore inconsistent with TPS No. 20.
On 7 April 2010, Wiseowl sought review by the Tribunal of the Council's decision under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). Following mediation conducted by

Member Marie Connor, the Council was invited to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At its meeting held on 23 June 2010, the Council reconsidered its decision and resolved as follows:
1.That the application submitted on 7 October, 2009 (DA 09/0211) proposing a Cellar Door Sales Facility, Microbrewery and Restaurant for Lot 100 Caves Road, Wilyabrup is considered consistent in part only with District Town Planning Scheme No. 20, and the proposed building including the uses of Cellar Door Sales Facility and Restaurant only are approved by Council subject to Conditions.
2.That the CEO be requested to issue a Planning Consent consistent with 1 above and subject to the following conditions:
i.all development is to be in accordance with the approved Development Plan dated 23 June, 2010 (attached) including any amendments placed thereon by the Shire of Busselton and except as may be modified by the following conditions;
…
x.prior to the issue of a Permit to Use a minimum number of 50 car parking bays shall be provided onsite in a location which meets all necessary requirements of the Scheme. The parking area(s), driveway(s) and point(s) of ingress and egress (including crossover(s)) shall be designed, constructed, sealed, drained, marked and thereafter maintained to the specifications and satisfaction of the Shire's planning department at all times;
…

3.The proposed Microbrewery facility is not approved as it is considered inconsistent with Town Planning Scheme 20 as it may jeopardise the agricultural use of adjoining land to the extent that it is considered inconsistent with State Planning Policy 6.1.

In accordance with condition (i) imposed by resolution 2 of the Council, an officer of the Shire marked a cross over the area of the carpark shown on the plans of the proposed development and wrote the following by hand on the plan:
CARPARK SHALL COMPLY WITH SCHEME REQUIREMENTS, IN PARTICULAR CL. 84(5) (SEE CONDITION 10)
Section 31(3) of the SAT Act states as follows:

If the decisionmaker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn, it is taken to be for the review of the decision as varied or the substituted decision.

During the final hearing in the proceeding, Wiseowl sought, and was granted, leave under s 46(1) of the SAT Act:
To withdraw the part of the application for review that is deemed by s 31 of the [SAT Act] to seek review of paragraphs 1 and 2(ii) (ix) and (xi) (xxiii) inclusive of the resolution of the respondent Council made on 23 June 2010.
In accordance with s 31(3) of the SAT Act, this proceeding is therefore now taken to be for review of the Council's decisions:
(a)to refuse to grant development approval for the proposed microbrewery in the northeastern part of the building that it approved by resolution 1; and
(b)to grant conditional development approval for the other elements of the development application; in particular, Wiseowl seeks the deletion of the words 'including any amendments placed thereon by the Shire of Busselton' in condition (i) and 'in a location which meets all necessary requirements of the Scheme' in condition (x); in other words, Wiseowl seeks approval in this proceeding of the two carparks it proposes between the building and Caves Road.

Issues for determination

The following four principal issues arise for determination in this review:
1)Whether the proposed microbrewery is likely to have an adverse impact on the Cullen Wines vineyard and winery by reason of migration of yeast.
2)Whether the proposed microbrewery is consistent with the objectives of the Viticulture and Tourism zone and the provisions of State Planning Policy No 6.1 LeeuwinNaturaliste Ridge Policy (SPP 6.1) and the Shire of Busselton Local Rural Planning Strategy 2006 (LRPS).

3)Whether the two carparks between the building and Caves Road are capable of approval under TPS 20.
4)If the answer to (3) is 'yes', whether discretion should be exercised under cl 34(1) of TPS 20 to modify the setback requirement under the Scheme to the extent necessary to enable approval of the proposed carparks.

The Tribunal will address each of these issues in turn.

Is the proposed microbrewery likely to have an adverse impact on Cullen Wines by reason of migration of yeast?

Yeast is a substance consisting of the aggregated cells of fungi employed to induce fermentation in the manufacture of alcoholic drink, including beer and wine. However, different yeasts are used in the manufacture of different alcoholic drinks. The proposed microbrewery would utilise particular strains of brewing yeasts, which are artificially cultured for the fermentation and production of beer.
Ms Cullen was called as a witness for the Shire. She explained that, over the past six years, Cullen Wines has introduced organic and biodynamic methods of growing grapes and wine production. The biodynamic method involves the use of 'indigenous' or 'wild' yeasts that occur naturally within the vineyard and winery. Ms Cullen gave evidence that:
Biodynamics is a natural way of farming, which avoids the use of chemicals and uses a variety of natural substances (eg cow manure, ground quartz silica, fish emulsion and kelp) in the soil and on the vines to produce vibrant, healthy vines which, in turn, yield grapes from which our quality wines are produced.
The biodynamic method also involves the on-site production and use of a particular compost which includes natural plant materials such as oak bark, dandelion, chamomile, yarrow and valerian. This compost is made close to the common boundary with [the site] and is put out once a year after harvest to return nutrients to the soil.
Ms Cullen said that, since adopting the biodynamic approach, 'there has been an improvement in the quality of our wines and, as a result, an increase in the number of awards and accolades'. Ms Cullen expressed the following principal concern in relation to the proposed microbrewery:
My main concern is that yeast cells from the proposed brewery will inevitably travel into the surrounding environment and will sexually

reproduce with the yeasts on our vineyard site. … If brewing yeasts migrate to Cullen Wines[,] the risk is that they will effectively dominate our indigenous yeasts and cause irreversible changes to our natural indigenous yeast populations which will in turn lead to beerlike flavours in our wines and also 'stuck fermentations'. 'Stuck fermentations' are when the yeast die and the fermentation stops. This is referred to as a 'stuck fermentation' as it is very difficult to restart as most of the sugar has been fermented and the alcohol levels are high. These conditions are unsuitable for yeast. If there is a stuck fermentation[,] the wine can develop a character which is very yeasty and unpleasant and therefore the wine from a stuck fermentation can be unsaleable. The damage to our wines and reputation could be irreparable.

The Shire also called Professor Graham Fleet, a microbiologist with significant research in analytical experience in relation to the use of yeast in fermentation of both wine and beer and a Visiting Professorial Fellow within the School of Chemical Engineering at the University of New South Wales. Professor Fleet gave the following evidence:
The close proximity of the microbrewery to the Cullen [Wines] vineyards and winery and the use of high populations of brewing yeasts within the brewery introduce a risk that these strains of yeast could disseminate to contaminate grapes in the vineyards of Cullen Wines and then establish themselves in the winery used to ferment their wines. The information available to me does not give adequate detail on how the microbrewery will operate, how yeasts might be properly contained within the brewery and what quality assurance management will be used to ensure their containment so that they do not escape to contaminate the surrounding environment.
The proposed microbrewery is located approximately 45 metres north of the common boundary with the Cullen Wines property and approximately 100 metres north of the closest vines on the Cullen Wines property.
Wiseowl has contracted CLE Brew Systems (CLE) of Nelson, New Zealand to supply the brewery system for the proposed microbrewery. Mr Christopher Little has been a selfemployed engineer for 34 years and is the chief engineer of CLE. For the past 27 years, Mr Little has specialised in the 'high quality, complete turnkey design, manufacture, commissioning and ongoing support' for small to medium sized breweries, including five breweries adjacent to or within wineries, as well as work for wineries, in New Zealand, Australia and other countries.

The proposed brewing system and process is described sequentially and diagrammatically in Attachment 1 and Attachment 2 to the 'Yeast

Containment Management Plan' (Management Plan) proposed by Wiseowl which is attached to these reasons. In a letter dated 23 March 2010 that was presented to the Council prior to its initial decision to refuse development approval for the microbrewery, Mr Little specifically addressed the yeast containment and destruction process within the brewery system for the proposed development as follows:
COMPLETE CONTAINMENT AND DESTRUCTION OF YEAST:
CLE Brew Systems will fabricate and provide a complete, closed circuit brewery system with complete containment of product and any yeast residue within the product for heat treatment and yeast cell destruction.
This will consist of the fermentation process and conditioning tanks being completely contained within the closed circuit piping for injection of yeast to the fermenters wort. CO2 will be collected from the fermenters and transferred, into an electrically heated holding tank at 85 degree Celsius for the destruction of any yeast cells that pass over with the CO2 discharge from the fermentation process.
The collection of the yeast from the fermenters will be pressurised into a sterile pressure receiver tank which will have permanent piping connected to the fermenter.
Yeast transfer from the fermenters to the conditioning tanks will be actioned in closed circuit piping.
The washdown of the fermenters and conditioning tanks will circulate through the permanently piped, heat holding tank, with a closed circuit loop and heated to 85 degrees Celsius for 30 minutes. This will have a sample port for testing under a microscope and will achieve a 100% destruction of any remaining cells in the fermenter and conditioning tank loop and piping. This washdown product can then be discharged to trade waste or with the spent grain for offsite removal. This system will be caustic cleaned, sanitised and rinsed ready for the next wort introduction to the fermenters from the Brewhouse.
This process will not allow any yeast to escape to the atmosphere and will contain all product within closed circuit piping for treatment and sterilisation of plant piping, transfer pumps etc.

Mr Little gave the following evidence:
I do not believe that there is a threat from the proposed microbrewery to the adjoining winery because the issue raised by the [Shire] would seem to require brewing yeast to 'escape' from the brewing process to travel to the adjoining property.

In my experience, in the ordinary brewing process, there is little opportunity for yeast to escape and migrate from the brewing process therefore I consider there is limited opportunity for adverse impact as the brewing yeast is contained in the brewing system. Further[,] the brewing process is entirely different to the wine process in that due to the vulnerability of the brewer's yeast against the indigenous yeasts found in the atmosphere, a more sterile and hygienic process is needed.
CLE Brew Systems prides itself on the production of highly contained and sterile brewing systems. I am not aware of CLE Brew Systems giving rise to issues because of 'escaping' brewing yeast and I have designed and installed a number of systems for breweries adjacent to wineries for which there has never been any issues, with brewer's yeast or any yeast, migrating and impacting on production and quality of their products.

Mr Little also said that:
Generally brewing processes are highly contained, sterile and hygienic systems due to the vulnerability of brewer's yeast and the need to ensure a constant environment for fermentation and production of the beer.
Mr Little's evidence in relation to the 'contained, sterile and hygienic' nature of the proposed brewing process and the lack of opportunity for brewer's yeast to 'escape' from the proposed development was confirmed by Mr Hugh Dunn, a chemist and a lecturer of brewing science in the School of Natural Sciences at Edith Cowan University, who has 25 years' experience in brewing, and Professor Graham Stewart, a microbiologist, Emeritus Professor of Brewing and Distilling at HeriotWatt University in Edinburgh, Scotland and Special Professor in Bioethanol Fermentation at the University of Nottingham, England, who has over 40 years' experience in relation to the properties of yeasts. Mr Dunn referred to 'numerous examples of micro-breweries established in wine regions, adjacent to existing wineries, having been in production for many years' and that 'there have been no reports of any yeast migration or crosscontamination issues from any of these sites that the author is aware of'. He gave evidence that:
The design of the brew plant, the proposed wastewater treatment plant, the evidence from studies that have been done with regard to yeast migration from wineries to vineyards and the inherent hygienic nature of the brewing process indicates that there is no threat that the brewing yeasts used in the microbrewery would migrate to the adjoining winery (Cullen Wines) and adversely impact on the production and quality of its wines.
Similarly, Professor Stewart's evidence was that 'the risk posed by the microbrewery to the adjoining biodynamic winery is negligible'.

In accordance with the Tribunal's usual practice, Professor Fleet, Professor Stewart and Mr Dunn were required to confer with one another, in the absence of the parties and their representatives, and prepare a joint statement for the Tribunal of:
(a)the issues arising in the proceeding which are within their expertise;
(b)the matters upon which they agree in relation to those issues;
(c)the matters upon which they disagree in relation to those issues; and
(d)the reasons for any disagreement.
In this case, the Tribunal also trialled a practice of listing a member to chair the experts' conferral. The member listed was Member Marie Connor who, as noted earlier, previously conducted the mediation in the proceeding and therefore had familiarity with the matter. The experts' conferral was chaired by Member Connor in Perth, with attendance by Professor Fleet by telephone from Sydney, Professor Stewart by telephone from Cardiff, Wales and Mr Dunn in person. The product of the conferral chaired by Member Connor was an excellent document, clearly and concisely expressed, and of great assistance to the Tribunal in arriving at the correct and preferable decision in this case. The experts' joint statement is, as Mr PG McGowan of counsel for Wiseowl said, a 'model' for such documents. The experience in this case indicates that the trial of the practice of listing a member, particularly one with familiarity in relation to a matter, to chair an experts' conferral and to facilitate the preparation of a joint statement of the experts, is a worthwhile allocation of the Tribunal's resources in appropriate cases, such as those involving complex, scientific evidence.
In their joint statement, Professor Fleet, Professor Stewart and Mr Dunn agreed that the proposed processes of yeast collection and treatment, involving heating of the yeast at 85 degrees Celsius for 30 minutes, 'would be effective in killing the brewery yeast'. The joint statement includes the following:
The three experts agreed that processes used within the microbrewery would be effective for killing and containing the yeasts, provided that they were properly implemented through a defined quality assurance management plan.
The experts referred to the statement of Mr Murray Burton [a director of Wiseowl] and specifically paragraph 42(f) in his statement, which stated

that a yeast management plan will be prepared. The experts agreed and emphasised that a more detailed and specific plan should be presented to the Tribunal. Such a plan should describe the unit operations in the microbrewery process, the critical points in the process where yeast containment operations were essential, and what procedures will be used to monitor and verify that yeast containment operations have been properly implemented.

In relation to yeast containment during service of beer at the site, the experts agreed that the draught beer served by the glass 'could contain living yeast cells'. They agreed that residues of beer left in glasses or in areas around the beer dispensing taps are likely to attract fruit flies that are known vectors of yeast. Such flies could transfer yeasts from these sources to grapes in nearby vineyards. Consequently, the experts agreed that 'the service operations present a critical control point for yeast containment'. They also agreed that 'this mode of yeast transfer [is] outside the scope of the microbrewery and [falls] within the domain of food and beverage service'. The experts noted, however, that the operation of the restaurant and cellar door has already been approved by the Council and that beer could therefore be served at the site even absent the proposed brewery. Furthermore, beer served at the restaurant 'could include bottled conditioned beers (eg Coopers sparkling beers) that contain significant sediments of yeasts in the bottle'. Such sediments 'contain high levels of living yeast cells and would pose a higher risk of yeast transfer to adjacent vineyards than that from the draught beer produced by the microbrewery, particularly if the used empty bottles are not stored in a secure closed environment'.
Wiseowl proposed the Management Plan after the filing and provision of the yeast experts' joint statement to the parties and prior to the commencement of the final hearing. The expert witnesses each reviewed the Management Plan before giving concurrent evidence as an expert panel before the Tribunal.
During the concurrent evidence, Professor Fleet said that, if five 'minor modifications' that he suggested were made to the Management Plan, then it would satisfy the contemplation in the joint statement for 'a defined quality assurance management plan' and 'a more detailed and specific plan [that] should be presented to the Tribunal'. Professor Fleet said that these minor modifications were 'probably' part of the proposed process in any case, but it would be appropriate to make them explicit in the Management Plan. The modifications proposed by Professor Fleet related to expressly stating the temperature and the length of the heating process to destroy yeast, referring to the collection of

residue from the bright beer tanks, indicating treatment of carbon dioxide released from the fermentation and conditioning tanks, providing more detail about hygiene and service of beer at the site and incorporating a method of monitoring. Professor Stewart and Mr Dunn agreed that each of these proposed modifications should be incorporated, with the exception of greater detail in relation to hygiene and service, which they regarded as unnecessary given normal practice for serving beer and, to quote Professor Stewart, 'overkill'. During the course of the concurrent evidence, the experts agreed to the terms for amendment of the Management Plan to give effect to the four modifications agreed between them. The Management Plan attached to these reasons incorporates the agreed modifications in para 5(e) and para 8(b). In relation to monitoring and compliance, in particular, para 8(b) states that:
The operator of the microbrewery shall arrange for a licensed laboratory to test on a monthly basis that the yeast has been killed by the application of the heating process. After three successive monthly tests confirming this, testing is to be undertaken on a three monthly basis. The laboratory confirmation or result is to be made available for review by the Shire on reasonable notice.

We prefer the evidence of Professor Stewart and Mr Dunn over Professor Fleet in relation to the one outstanding issue between them, namely, whether further detail should be included in the Management Plan in relation to hygiene and service issues. As Mr Dunn said, the operation of the service area to prevent beer from being spilled and lying around is part of 'normal, good practice in food and beverage service'. Mr Dunn referred to his experience in visiting many microbreweries and said that 'the cleanliness of the microbrewery is also reflected in [its] bar service'. Professor Fleet agreed that it is 'part of normal service operation' to clean up spilt beer and that 'you are not going to get yeast jumping out of a glass onto the grapevine'. Furthermore, as noted earlier, the experts agreed that beer could be served in any case from the approved restaurant and that bottled conditioned beer 'would pose a higher risk of yeast transfer to adjacent vineyards than that from the draught beer produced by the microbrewery'. The Tribunal therefore does not consider that the Management Plan for the microbrewery requires further detail in relation to hygiene and service of beer at the site.
Having regard to the 'highly contained, sterile and hygienic' process which 'provide[s] a complete, closed circuit brewery system with complete containment of product and any yeast residue within the product for heat treatment and yeast cell destruction' proposed in this case, the detailed Management Plan reviewed and accepted by the expert witnesses,

and the joint expert evidence, the Tribunal finds that the proposed development is unlikely to have an adverse impact on Cullen Wines or any other vineyard or winery in the locality by reason of migration of yeast. Indeed, contamination of indigenous or wild yeasts at the adjoining winery by brewer's yeast used in the proposed development is, to quote Professor Stewart, 'highly unlikely'.

Mr Andrew Roberts, counsel for the Shire, submitted that the Management Plan is not an effective or sustainable way to mitigate the risk of yeast migration from the proposed microbrewery to Cullen Wines and that the proposed microbrewery should therefore be refused consent. In support of this submission, Mr Roberts relied on the decision of Commissioner Graham Brown in the Land and Environment Court of New South Wales in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 (Renaldo). Renaldo was an appeal against the refusal of a development application for demolition and the erection of a mixed commercial, retail and residential development in a southern suburb of Sydney. The commercial development included a supermarket. A significant issue in the proceeding was the operation of the supermarket's loading dock and the applicant's reliance on an Operation Management Plan to control deliveries to the loading dock in a manner that would minimise impacts on an adjoining residential area. At [52] [54], Commissioner Brown said the following:
52.In considering the range of evidence on the suitability of the loading dock, the general consensus of the experts was that if the loading dock were operated in accordance with the Operation Management Plan, it would operate in an acceptable manner. This raises the important question of whether the Operation Management Plan can be relied upon to provide some certainty in its operations and consequently provide a reasonable level of amenity and safety for adjoining residents and other people using the Mulga Rd shops.
53.Management Plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent. Management Plans are a well known concept in environmental law (Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196 at par 122) and can be used in a range of different circumstances. Often, [as] is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused.

54.In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:
1.Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?
2.Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
3.Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
4.Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?
5.Can the people the subject of the Management Plan be reasonably expected to know of its requirements?
6.Is the Management Plan to be enforced as a condition of consent?
7.Does the Management Plan contain complaint management procedures?
8.Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?

Commissioner Brown then proceeded, at [56] [77], to address each of the questions that he identified at [54].
In this case, Mr Roberts referred, in particular, to question 3 and question 4 identified by Commissioner Brown. Mr Roberts submitted that the proposed development should be refused because the source of any breaches of the Management Plan cannot be identified to allow for enforcement action and the requirements of the Management Plan require absolute compliance to achieve an acceptable outcome.
Commissioner Brown's decision in Renaldo is identified on the Land and Environment Court website as the 'current planning principle' of the Court in relation to 'adequacy or appropriateness of a plan of management to the particular use and situation'. The website states as follows:
A planning principle is:
•statement of a desirable outcome from:

•a chain of reasoning aimed at reaching; or
•a list of appropriate matters to be considered in making a planning decision.

While planning principles are stated in general terms, they may be applied to particular cases to promote consistency. Planning principles are not legally binding and they do not prevail over Council's plans and policies.
Planning principles assist when making a planning decision including:
•where there is a void in policy; or
•where policies expressed in qualitative terms allow for more than one interpretation; or
•where policies lack clarity.

While decisions of the Tribunal often articulate, discuss and apply planning principles, the Tribunal has not adopted a similar formal process of identifying and citing 'planning principles' as in New South Wales. In any case, it is unnecessary to determine whether the decision in Renaldo reflects a planning principle in this jurisdiction, because consideration of the two questions emphasised by the Shire would not alter the Tribunal's findings in relation to issue 1. In relation to whether breaches of the Management Plan can be identified to allow for enforcement action to be taken, the parties are in agreement that, if the proposed development is approved, then it should be conditioned on 'the site management of brewing yeast at all stages of the brewing stages and yeast containment measures being implemented in accordance with the Management Plan'. As noted earlier, the Management Plan contains an explicit requirement for laboratory testing to confirm that yeast has been killed by the application of the heating process. The laboratory confirmation or result is required to be made available for review by the Shire on reasonable notice.
Furthermore, the requirements of the Management Plan do not require absolute compliance to achieve an acceptable outcome. Rather, the proposed development is acceptable because the process is 'highly contained, sterile and hygienic' and 'provide[s] a complete, closed circuit brewery system with complete containment of product and any yeast residue within the product for heat treatment and yeast cell destruction'. It is the process itself that will result in the containment and destruction of yeast. The Management Plan is certainly important in supplementing the process. However, the requirements of the Management Plan do not require absolute compliance to achieve an acceptable outcome; an

acceptable outcome is likely to be achieved because of the nature and considered design of the brewing process.

Finally, in relation to this issue, Mr Roberts relied on the 'precautionary principle' discussed and applied by the Tribunal in WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 at [37] [45]. However, the first condition for the application of the precautionary principle, namely, that there is a threat of serious or irreversible environmental damage, is not satisfied having regard to the evidence in this case. The evidence shows that it is highly unlikely that yeast from the brewing process would be released into the environment and transported to the adjoining vineyard and winery. In any case, even if there were a threat of serious or irreversible environmental damage, the proposed development incorporates precautionary measures that would mitigate the threat of environmental damage. The principal precautionary measure is the 'highly contained, sterile and hygienic' nature of the proposal which 'provide[s] a complete, closed circuit brewery system with complete containment of product and any yeast residue within the product for heat treatment and yeast cell destruction'.

Is the proposed microbrewery consistent with the objectives of the zone and the provisions of SPP 6.1 and the LRPS?

It is common ground between the parties that a microbrewery or brewery is a use that is not specifically mentioned in Table 2 Zoning Table of TPS 20 and cannot reasonably be determined as falling within the interpretation of one or more of the use categories under the Scheme. Clause 22 of TPS 20 states as follows:
If the use of the land for a particular purpose is not specifically mentioned in Table 2 Zoning Table 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 can therefore be carried out without Planning Consent; or
(b)determine that the proposed use may be consistent with the objectives and purposes of the zone and therefore may only be carried out after public advertising pursuant to Clause 12; or
(c)determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore prohibited.

The objectives and policies of the Viticulture and Tourism zone are as follows:

Viticulture &Tourism Zone

OBJECTIVES OF THE ZONE

(i) To provide for development and expansion of the viticultural, winemaking and associated industries, in addition to general rural pursuits, only in a manner that does not cause adverse environmental impact; AMD 54 GG 12/4/05

(ii) To optimise the tourism potential of viticultural activities within the Shire in a manner that will sustain those industries and not frustrate their further development but will ensure that viticulture is predominant in the combination of land uses.

(iii) To discourage ribbon development along Caves Road and other roads and to maintain the rural ambience of transport corridors generally.

POLICIES OF THE ZONE

(a) To facilitate the development of tourist facilities of a scale and nature appropriate in rural settings, including galleries, eating facilities, chalets and holiday resorts, especially in association with established viticultural and related enterprises;

(b ) To achieve (a) above without prejudice to the scenic quality of land within this zone and without creating or increasing ribbon development on any road;

(c) To apply restrictions whereby an allotment proposed to be created by subdivision for an agricultural or viticultural purpose shall contain a minimum area of land that actually is useable for commercial fanning. Depending upon the circumstances, the area of an allotment may be greater than the area necessary for the farm due to terrain, creeks, protection zoning, etc. As a general guide, the actual minimum useable area for a commercial farm for viticultural pursuits is 30 hectares. Any proposed agricultural activity or a duster farm shall be subject to assessment by the Council in consultation with the Agriculture Western Australia to establish the minimum area necessary;

(d) To generally implement and adhere to the adopted recommendations and outcomes of the Shire of Busselton Rural Strategy as endorsed by the WA Planning Commission.

(e) To restrict the clearing of remnant vegetation and facilitate the retention and enhancement of such vegetation. AMD 54 GG 12/4/05

The 'Shire of Busselton Rural Strategy as endorsed by the WA Planning Commission' referred to in policy (d) is the LRPS. Clause 1.2 of the LRPS states that 'the main outcome of the Local Rural Planning Strategy is to provide an updated policy framework that promotes … objectives [including]:
•To protect the commercial and agricultural viability of rural land and rural land use in the Shire.

•To minimise the potential for conflict between agricultural and non-agricultural uses in the rural areas.
•To maintain the rural and natural landscape character values of the Shire.
•To ensure consistency with the objectives and intent of the Agricultural and Rural Land Use Planning Policy, [SPP 6.1] and other State Planning Policies.
…
•To identify and establish a sustainable and compatible role for nonagricultural uses, particularly appropriate tourist uses within the rural areas of the Shire.

…

The site and Cullen Wines are located within Precinct 4 Western Rural under the LRPS. This precinct 'effectively represents the "heart" of the viticulture and wine/tourism industry in the Shire and for much of the Margaret River Wine Region': cl 7.4.1 of the LRPS. Clause 7.4.2 of the LRPS sets out sustainability factors that include the following 'economic' factors:
•Part of one of the most viable viticultural and popular wine/tourism regions in Australia with an economic base supported by local, State, interstate and international market/visitors. …
•Supports an extensive and expanding range of touristbased uses including accommodation, rural industry based tourism such as wineries, restaurants, breweries, galleries, herb farms, chocolate production and local produce production. …
Clause 7.4.3 of the LRPS identifies 'major issues' including:
•Land use competition and conflict between agricultural uses (particularly viticulture and extractive industry) and touristbased uses. Achieving a sustainable balance between the rural and tourist uses. …
•Long term sustainability and expansion of the viticultural industry in view of limited water resources. …
Clause 7.4.5 of the LRPS states the following 'Precinct Vision':
To support the ongoing primary agricultural land use and associated ruralbased tourist development in a manner that sustains the high

agricultural potential, existing natural environment, landscape values and rural character of the area.

Clause 7.4.6 of the LRPS contains the following 'Precinct Objectives' in relation to 'economic' matters:
•To facilitate the ongoing expansion of agricultural land uses with a focus on viticulture and other intensive agriculture.
•To facilitate the ongoing expansion of ruralbased tourist development where this will not impact or compete with viable agricultural land use or harm agricultural potential and where the landscape, environmental and other values and rural character of the area are sustained.
As noted, one of the objectives of the LRPS is 'to ensure consistency with the objectives and intent of … [SPP 6.1]'. Furthermore, the Tribunal is required by s 241(1) of the PD Act to have 'due regard to relevant planning considerations including … any State planning policy which may affect the subject matter of the application', which includes SPP 6.1, and is relevantly required by cl 13(1)(a)(iii) of TPS 20 to 'take into consideration … any … [State] Planning Policy under the [PD Act]', which also includes SPP 6.1. The 'Overall Objectives' of SPP 6.1 include:
•Protect agricultural land for its economic, landscape, tourism and social values;
•encourage a mix of compatible land uses while separating conflicting land uses; (Clause 3)
The site and Cullen Wines are located in the area identified as 'Agricultural Protection' and specifically 'Principal Agriculture (Viticulture and Grazing)' under SPP 6.1. The Statement of Intent in relation to agriculture in cl 4.4 of SPP 6.1 states as follows:
The continued protection and viability of agricultural land within the policy area will be supported by
•protection for agricultural uses;
•protection from incompatible uses;
•encouraging environmentally and economically sustainable practices; and
•ensuring that tourism and settlement patterns retain a secondary and complementary function on agricultural land.

Policy statement 4.4 of SPP 6.1 includes the following:
In order to support and protect agricultural land uses within land designated as Agricultural Protection, there is a general presumption against the approval of non-agricultural use/development. However, non-agricultural use/development will be considered where the proponent can demonstrate that any approval will
•be compatible with the agricultural use of adjoining or nearby land and where required, include appropriate buffers within the subject land;
…
•be ancillary to agricultural production and complementary to the agricultural use. …
A 'Land Use Strategy' in SPP 6.1 identifies 'the preferred predominant land uses across the area covered by the [State] Planning Policy'. Land Use Strategy 4.1 states as follows:
In areas designated Principal Agriculture (Viticulture and Grazing), the predominant use of land will be agriculture. Other uses, including uses of interspersed lands with less agricultural potential, will be compatible with and not jeopardise, agricultural use of adjoining Prime Agricultural Land.
Mr Goff gave the following evidence:
The proposed microbrewery is essentially a tourist facility attracting and catering to visitors to the area. It is consistent with the notion of providing facilities such as 'eating facilities' in that people will often enjoy a beer before or as an accompaniment to a meal. The microbrewery is to be related to a viticultural enterprise which includes cellar door sales and a restaurant. The microbrewery does not prejudice the scenic quality of the area or add to ribbon development being at the rear of an approved building. No subdivision is proposed as part of the development. The proposed use of a micro-brewery does not require the clearing of remnant vegetation and is generally consistent with Council's Rural Strategy as discussed below.
Mr Allerding did not disagree with this evidence. Mr Goff's opinion that the proposed microbrewery 'is essentially a tourist facility' is consistent with the LRPS and in particular cl 7.4.2 which, as noted earlier, 'supports an extensive and expanding range of touristbased uses including … rural industry based tourism such as … breweries … (emphasis in bold added). The Tribunal accepts Mr Goff's evidence in this regard.

Mr Goff considered that the proposed microbrewery is consistent with the objectives and policies of the Viticulture and Tourism zone and is also consistent with the provisions of the LRPS and SPP 6.1 referred to above. In his written evidence, Mr Allerding disagreed with Mr Goff, but importantly, his sole reason for doing so was his understanding of the opinion of Professor Fleet who, Mr Allerding said, 'identifies that there is a risk of yeast exportation that could adversely impact on Cullen's winery agricultural use'. However, in oral evidence, Mr Allerding said that, if the Tribunal were to find on the yeast experts' evidence that there is not likely to be a risk of yeast exportation, then he would not consider there to be any inconsistency between the proposed development and with the objectives and policies of the zone or with any other aspect of the planning framework. For reasons set out earlier, the Tribunal is satisfied on the evidence that there is not likely to be a risk of yeast exportation from the proposed microbrewery to Cullen Wines and, indeed, that it is highly unlikely that there would be contamination from the proposal to the adjoining vineyard and winery.
Consequently, the Tribunal finds that the proposed development is consistent with the objectives and policies of the Viticulture and Tourism zone and the other provisions of the planning framework referred to earlier. In particular, the proposed development is consistent with the planning framework, because it is a tourist facility of a scale and nature appropriate in a rural setting, it is proposed on a small part of a site that is otherwise developed with vines and approved for development of a cellar door and restaurant, and is compatible and unlikely to conflict with, jeopardise or harm viticulture in the locality in general or the adjoining biodynamic vineyard and winery in particular.

Are the proposed carparks capable of approval?

Clause 84 of TPS 20, which applies to the Agriculture and Viticulture and Tourism zones, includes the following:
…
(3)No building shall be constructed on a lot with a common boundary to Caves Road closer than 100 m to that boundary without the written consent of Council pursuant to this Scheme.
…
(5)No person shall use or develop the land between the building setback line and the road alignment for any purpose other than a means of access, landscaping, dam construction (ie subject to

planning consent pursuant to clause 83) or a rural activity permissible in the zone.
…

As noted earlier, the development application includes a sealed carpark for patrons, set back between 30 metres and 80 metres from Caves Road, and a grassed 'overflow' carpark for patrons, set back between 10 metres and 30 metres from Caves Road. As also noted earlier, the building approved by the Council for the site is set back 80 metres from Caves Road.
Clause 34(1) of TPS 20 states as follows:
Except for development in respect of which the Residential Planning Codes apply under this Scheme, if a development the subject of an application for planning approval does not comply with a standard prescribed by the Scheme or respective policy pursuant to the Scheme with respect to minimum lot sizes, building heights, setbacks, site coverage, carparking, landscaping and related matters, the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit. The power conferred by this clause may only be exercised if the Council is satisfied that:
(a)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality;
(b)the noncompliance will not have any adverse effect upon occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality;
(c)the noncompliance is consistent with the policies and objectives of the relevant Council policy pursuant to the Scheme;
…
Mr Roberts submitted on behalf of the Shire that the proposed carparks are incapable of approval under the Scheme because, on the proper interpretation of cl 84(5), having regard to the decision of the Tribunal in O'Donovan and Town of Vincent [2005] WASAT 120 (O'Donovan) at [39], it does not prescribe a standard that can be modified by the exercise of discretion under cl 34(1) of the Scheme, but rather is an absolute prohibition on the development of, among other forms of development, carparks, between the building setback line and the road alignment. Mr Roberts submitted that the 'building setback line' under

cl 84(5) of the Scheme is, relevantly, 80 metres, because the Council approved that setback for the building under cl 84(3) of the Scheme.

Mr McGowan submitted on behalf of Wiseowl that the Council, and therefore the Tribunal on review, has discretion under the Scheme to allow the proposed carparks. Mr McGowan submitted that it could not have been the intention of the Scheme to allow the Council to consent to the construction of a building within 100 metres of Caves Road, but to preclude the Council from consenting to the construction of ancillary development, such as a carpark, within 100 metres of Caves Road.
In O'Donovan, the Tribunal referred to the dictionary definitions of the terms 'standard' and 'requirement' at [37] and [38] and then said the following at [39]:
Thus, a 'standard' is a level which is regarded as normal, adequate or acceptable, and a 'requirement' is something which is demanded, obligatory or needed. It is, therefore, apparent that these terms refer to something which regulates an aspect of permitted use or development, not something which absolutely prohibits, or does not permit under any circumstances, a particular type of use or development.
Read in the context of cl 84(3) of TPS 20, the term 'the building setback line' in cl 84(5) refers to a distance of 100 metres from Caves Road, which is the minimum setback prescribed for a building by cl 84(3). The 'building setback line' does not change simply because the Council has exercised its discretion to allow a building to be constructed closer than 100 metres from the road.
On its proper interpretation, cl 84(5) of TPS 20 prescribes 'a standard … with respect to … setbacks … ' and is therefore amenable to the exercise of discretion under cl 34(1) of TPS 20. Clause 84(5) of the Scheme prescribes a level which is regarded as normal, adequate or acceptable, namely, minimum setback from the road frontage for the location or siting of use or physical development of a property. Minimum setback for the location or siting of development or use is something which regulates an aspect of a permitted use or development, not something which absolutely prohibits, or does not permit under any circumstances, a particular type of use or development. The fact that cl 84(5) of TPS 4 specifically exempts nominated uses or developments, namely, access, landscaping, dam construction and rural activity, does not change this characterisation or remove the availability of the discretion.

This interpretation is supported by the terms of both cl 34(1) and cl 84(3) of TPS 20. Clause 34(1) of the Scheme does not simply refer to any 'standard prescribed by the Scheme' or to any 'standard or requirement of the Scheme' (contrast cl 40(1) of the Town of Vincent Town Planning Scheme No 1 considered in O'Donovan: see [9]). Rather, cl 34(1) of the Scheme refers to 'a standard prescribed by the Scheme or respective policy pursuant to the Scheme with respect to' specific types of standards including 'setbacks'. Clause 84(5) of TPS 20 clearly refers to the setback of use or development. Furthermore, it could not have been the intention of the Scheme to enable the Council, as it has done in this case, to consent to the erection of a building within the building setback line, but not to allow the Council to consent to ancillary use or the construction of ancillary development which has considerably less visual impact than a building, such as a paved carpark or the use of a grassed area for carparking, within the building setback line.
It follows that the proposed carparks are capable of approval under cl 34(1) of TPS 20.

Should discretion be exercised to allow the carparks in their proposed locations?

The site is located in Visual Management Policy Area 2 under the Special Character Areas and Visual Management Policy (Visual Management Policy) which was adopted by the Council as a local planning policy under TPS 20 on 10 March 2010. The Visual Management Policy states in relation to Visual Management Policy Area 2 as follows:
Landscapes within this Policy Area have a moderate visual absorption capacity. Appropriate development will have a moderate visual impact only. Introduced visual elements will be apparent in the landscape but, through careful design, can potentially add to, rather than detract from the visual amenity.

Specifically in relation to low/medium visual quality land in Visual Management Policy 2, the Visual Management Policy states that:
Developments and/or changes of use may be visually apparent from Caves Road with careful design, but will nevertheless be subordinate to established landscape patterns.
Mr Allerding carried out an analysis of the approximately 30 properties within Visual Management Policy Area 2. Mr Allerding's analysis revealed that only three properties have carparking within

100 metres of Caves Road. Referring to the particular circumstances of each of these properties, Mr Allerding considered that the carparking in those cases is generally acceptable and consistent with the Visual Management Policy. In contrast, Mr Allerding considered that the proposed carparks 'will be a dominant feature in the landscape because of the open nature of the view' and, therefore, not acceptable. Mr Allerding gave the following evidence:
Whilst the building form may be an acceptable form of development within the front setback (with some screening), having regard to:
•The location and configuration of the carpark on the site which would be highly visible and comprising a significant element within the front setback.
•The topography of the land and its visibility when viewed from various vantage points along Caves Road.
•The lack of vegetation within the site and along Caves Road.
•Its designation in the various local and regional planning frameworks which identify it as an area of some landscape significance.
•The existing pattern of development along Caves Road Policy Area 2.

The proposed carpark is considered to be inconsistent with the pattern of development in the area.
Further, it is inconsistent with the Caves Road Visual Management Policy because:
•It will not improve the landscape apparent in the area.
•It will be visually apparent from Caves Road and will not be subordinate to the established landscape.

Mr Allerding considered that the carparks should be relocated further back from Caves Road. In particular, Mr Allerding suggested that carparking should be located adjacent to the southern boundary of the site, at least 60 metres from Caves Road, to the south of the building and to its rear.
Mr Goff acknowledged that the proposed carparks 'will be relatively close to Caves Road and will therefore be visible from this tourist route'. However, he considered that the carparks are acceptable in terms of visual impact because the site falls away from Caves Road, a carpark 'is

essentially an open space' and there is capacity for landscaping to screen the carparks. Mr Goff also said that there would have to be a significant redesign of the building approved by the Council if the carpark were relocated to the rear. Finally, Mr Goff expressed a concern that relocation of the carpark to the rear would expose patrons to a safety risk in having to traverse the service area to the south-east of the building.

Mr Allerding and Mr Goff agreed that, because of a dense band of trees along the common boundary of the site with Cullen Wines and trees along the northern Caves Road frontage of Cullen Wines, the proposed carparking areas on the site would not be apparent for motorists and passengers travelling north along Caves Road until they had essentially reached the site. The carparking areas would only be substantially apparent to motorists and passengers travelling south in the vicinity of the site.
The Tribunal considers that discretion under cl 34(1) of TPS 20 should not be exercised to allow the proposed carparks. This is because approval of the proposed development would, in this respect, be inconsistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality (see cl 34(1)(a) of TPS 20). Furthermore, while Visual Management Policy Area 2 has a 'moderate visual absorption capacity' and while developments on low/medium visual quality land 'may be visually apparent from Caves Road', because of the close proximity of the carparking areas to the road and the significant size of the paved carpark, the carparking elements of the proposal would detract from the visual amenity and would not be subordinate to established landscape patterns. While the site falls away from the road, the photographic evidence shows that the carparking areas, including the large paved area, would be clearly apparent. Furthermore, there is insufficient space between the proposed 'overflow' carpark and Caves Road to provide adequate screening.
However, the Tribunal considers that, given the recognised 'moderate visual absorption capacity' of Visual Management Policy Area 2, the landscaping along the southern boundary and along the northern frontage of Cullen Wines, the fall of the land and the siting and massing of the approved building, approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality and generally consistent with the Visual Management Policy if the 'overflow' carpark were eliminated and the paved carpark were relocated and reconfigured to have a minimum setback of 50 metres from Caves Road. It appears that there is

sufficient space to the south and west of the approved building to accommodate 50 car bays in a paved carpark with a minimum setback of 50 metres from Caves Road. Such a relocated and reconfigured carpark would be visually subordinate to the building and landscape setting and, unlike the proposed carparks, would not be a dominant feature in the landscape. The relocation of the carpark in this way would not require any redesign of the building and would not expose patrons to having to traverse the service area to the south-east of the building. The elimination of the overflow carpark and the relocation and reorientation of the paved carpark in this way would also create a sufficient area for landscaping between the carpark and the road. Mr Burton referred to the importance of the visibility of the property from Caves Road as lending itself to development comprising cellar door, restaurant and brewery. It would seem, therefore, that an ideal form of 'landscaping' between the relocated carpark and Caves Road, consistent with rural activity elsewhere on the site, the character of the area and Wiseowl's desire to maintain the visibility of the development, would be to plant grapevines in that area. This form of 'landscaping' would screen the carpark, but not the building, and would provide an attractive setting for the development.

Finally, it is not apparent on the evidence why an overflow carpark is necessary. It appears from condition (x) imposed by the Council on 23 June 2010 that only 50 car bays are required for the development. If, however, Wiseowl considers that additional carparking may be required, it can apply for development approval to locate overflow parking on grassed areas to the east of the building. There is sufficient space to the north of the building and to the south of the large dam to accommodate an accessway for both overflow vehicles and patrons. While Mr Goff raised a concern about locating carparking to the east of the building in terms of the visual significance of the area further to the east, of its nature, overflow parking would not be a frequent use and would be acceptable in this location.

Conclusion

The proposed microbrewery is not likely to have an adverse impact on the adjoining biodynamic vineyard and winery by reason of the migration of yeast. Furthermore, the proposed microbrewery is consistent with the objectives of the Viticulture and Tourism zone under TPS 20 and the provisions of SPP 6.1 and the LRPS. The proposed microbrewery development, therefore, warrants conditional development approval.

The proposed carparks between the approved building and Caves Road are capable of approval under TPS 20, because the Council, and the Tribunal on review, has a discretion to approve use and development within a setback of 100 metres from Caves Road under cl 34(1) of the Scheme. However, the Tribunal has determined that the proposed carparks would not be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality and, in particular, would detract from the visual amenity and not be subordinate to established landscape patterns.
In accordance with the Tribunal's usual practice, the respondent proposed a set of 'without prejudice' draft conditions of approval in the event that the Tribunal determined to grant approval for the microbrewery. Ultimately, only one condition was in dispute between the parties. The disputed condition (condition 4) states as follows:
The building containing the microbrewery must be designed such that any potential contaminants and/or biological pollutants (including yeast) are contained within the building at all times. Details of the design shall be included with the building licence application and submitted to the Shire for approval prior to the commencement of the development hereby approved.
Wiseowl objected to this condition on the basis that it is unnecessary. The Tribunal considers that the condition is unnecessary because, for reasons set out earlier, the closed circuit brewery system with its complete containment and destruction of yeast is, in itself, likely to ensure that there will be no migration of yeast from the development to the adjoining vineyard and winery. Furthermore, the parties have agreed to a condition requiring that 'the onsite management of brewing yeast at all stages of the brewing process and yeast containment measures must be implemented in accordance with' the Management Plan. The brewing process itself, supplemented by the Management Plan, makes the disputed condition unnecessary.
The Tribunal considers that carparking can be accommodated to the west of the building, consistently with orderly and proper planning of the locality, the preservation of the amenity of the locality and the Visual Management Policy, provided that it is set back at least 50 metres from Caves Road. It appears that there is sufficient space to the west and south of the building to accommodate 50 car bays. The conditions imposed by the Council on 23 June 2010 in approving the development application, other than in respect of the development and use of part of the building as a microbrewery, should be varied to require the relocation and

reconfiguration of the carpark in this area and the establishment and maintenance of grapevines between the carpark and Caves Road.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed in part.
2.Condition (i) imposed by the respondent on its approval of the proposed building and development and use of a cellar door and restaurant at Lot 100 Caves Road, Wilyabrup is varied by deleting the words:
including any amendments placed thereon by the Shire of Busselton
and inserting in their place the words:
other than the two public carparks between the building and Caves Road which are not approved.
3.Condition (x) imposed by the respondent on its approval of the proposed building and development and use of a cellar door and restaurant at Lot 100 Caves Road, Wilyabrup is varied by deleting the words:
which meets all necessary requirements of the Scheme.
and inserting in their place the words:
to the west and south of the approved building with the car bays set back a minimum distance of 50 metres from the Caves Road frontage of the site. The area between the carpark and the Caves Road frontage shall be planted and thereafter maintained with grapevines.
4.The decision made by the respondent on 23 June 2010 to refuse development approval for the development and use of a microbrewery within the approved building at Lot 100 Caves Road, Wilyabrup is set aside and a decision is substituted that development approval is granted subject to the following conditions:
1)The development is to be carried out in accordance with the plan drawn by Donaldson and Warn Job No 0911 Drawing No SD1.03A and

generally in accordance with the Brewery Layout Plan drawn by Design Base Ltd Drawing 09106 Revision F.
2)The development shall be substantially commenced within two years from the date of this approval.
3)Occupation or use of the development must not occur until the Shire of Busselton has issued to the owner a written permit for use of the development.
4)The onsite management of brewing yeast at all stages of the brewing process and yeast containment measures must be implemented in accordance with the Yeast Containment Management Plan that is attached.

I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER

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Citations

WISEOWL INVESTMENTS PTY LTD and SHIRE OF BUSSELTON [2010] WASAT 150

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

4

Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315

Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196

WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260