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[2013] WASAT 149
General information, not legal advice.
State Administrative Tribunal (WA)
2013-09-11
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : AAA EGG COMPANY PTY LTD and SHIRE OF GINGIN [2013] WASAT 149
Town planning Development application Rural area - Freerange egg farm Preliminary questions Construction of local government resolution Whether grant of planning approval Discussion of relevant principles of construction of resolutions Tribunal determining that formal resolution following invitation to reconsider amounted to grant of conditional planning approval Construction of planning approval Discussion of relevant principles of construction of approvals Extent to which extrinsic material may be incorporated in or relied upon to show scope of approval Whether local government correct in its assumption that freerange areas had been fixed by reference to certain patio/verandah structures shown on plans Wide range of standards as to what constitutes 'freerange' operations Tribunal determining that approval did not confine the freerange activities to structures shown on plans Applicant had assumed flexibility to adjust to changing regulatory and consumer standards and preferences Words and phrases: 'freerange'
Preliminary questions determined adversely to respondent Shire's position
The AAA Egg Company Pty Ltd had sought planning approval from the Shire of Gingin for a 'free range and other noncaged production farm'. After a long process of negotiation, revision and mediation in the State Administrative Tribunal, the Shire was invited to formally reconsider its earlier refusal of the proposal.
In February 2013, the Shire carried a resolution which appeared in form to be a grant of conditional planning approval. Further mediation in the Tribunal noted that some subsidiary conditions were still the subject of negotiation between the parties. These nonessential operational matters were described as the 'remaining issues in dispute'.
A further dispute then arose between the parties concerning the extent to which, if any, the hens would be free to roam away from the layer sheds and associated patios and verandahs shown on the applicant's plans.
The Tribunal reviewed Australian and United Kingdom planning cases on the construction of resolutions and grants of planning approval.
As to the first issue, the Tribunal determined that, based upon these authorities, the interpretation of any resolution depended upon its contents, and the circumstances and evidence of surrounding facts.
On the second issue, it was well established that the extent of any grant of planning approval was to be determined objectively. The parties' subjective intentions and representations must be found in or formally translated into the approval itself and any conditions attaching to it. Likewise, the scope for incorporating extrinsic material was quite limited. Such certainties were needed, as any grant of planning approval was not 'personal' to the applicant but was expressed as a formal and public act attaching to the land and enuring for the benefit of the owners and occupiers of the land. Contractual analogies were inapposite.
The Tribunal held that both the form and the substance of the Shire's resolution in this case amounted to formal conditional planning approval being given by the Shire. The further negotiation by mutual agreement of some subsidiary regulatory matters did not affect that characterisation.
The Tribunal also held that this grant of planning approval did not prescribe the precise limits of the hens' freerange areas. Freerange egg farms, by definition, often required substantial noncage or nonbarn runs, and publicly available standards and material in this area showed that they were both variable and flexible. There was nothing in the material before the Tribunal to suggest that these matters, even if they had been raised by either party (and there was no evidence suggesting that they had been so raised), had been relevantly incorporated into the planning approval or its conditions.
The final hearing dates were accordingly vacated and the matter was referred for further mediation.
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103
Brisville Pty Ltd v Brisbane City Council [2007] QPEC 63; [2007] QPELR 637; (2007) 1 PDQR 165
Co-operative Retail Services Limited v Taff-Ely Borough Council (1980) 39 P & CR 223
Heath Hill Poultry Pty Ltd v Cardinia Shire Council [2012] VCAT 1444; (2012) 45 VPR 131
Myer Queenstown Garden Plaza Pty Limited v City of Port Adelaide (1975) 33 LGRA 70
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Snook and Western Australian Planning Commission [2012] WASAT 38
Transpacific Industries Group v Ipswich City Council [2012] QPEC 69
1 Certain preliminary matters must be resolved before the final hearing, currently scheduled for the end of this month, may proceed. As the Tribunal views matters, the proceedings to date and the material considered by the Tribunal suggest that there are two critical issues to be resolved.
2 In short, the respondent contends that there was no valid planning approval given by the Shire and that its resolution of 19 February 2013 (in response to an invitation by the Tribunal to the Shire to reconsider its decision) amounted to no more than advice to be given to the Tribunal that formal approval would be or could be subsequently given once certain events had transpired.
3 Alternatively, the Shire contends that if planning approval had been given, then the approval included limits on the free-range areas, in effect, confining the hens to certain patio/verandah structures adjoining the layer sheds.
4 The answers to these questions (and the reasons therefor) were delivered orally. What follows has been taken from the transcript of those reasons and has been formally revised and edited for publication.
5 The central and critical facts in the review (to date) are not in dispute. They are set out immediately below. I have been aided by the detailed work of counsel, Mr M Hotchkin for the applicant (assisted by the applicant's agent, Mr I McKellar), and Dr D Nicholson for the respondent Shire.
6 Some three days of evidence and argument in the Tribunal has taken place, the parties cooperating so as to provide the Tribunal with the maximum amount of background information possible. By consent, some material from the extensive mediation process in the Tribunal has also been released onto the record.
7 As shall be seen from the authorities to be discussed in a moment, much of this material is strictly inadmissible as regards the issues to be decided. However, parts of this material has provided useful context for this preliminary decision to be made by the Tribunal, and to explain the decisions that were made by the Shire.
8 As I have already mentioned, the main facts are not in issue. They conveniently appear at various points in the applicant's written submissions dated 21 June 2013, and in the respondent's responsive submissions and documents dated 24 June 2013. The essential facts for present purposes are as follows:
[T]hat Council advise the State Administrative Tribunal that it will grant Planning Approval for the proposed Animal Husbandry Intensive (Poultry Farm) and Incidental Buildings on Lot 7974 Cowalla Road, Wanerie, subject to the following conditions:
General requirements
9 The officers' report to Council on 19 February 2013 included the following comments:
The land is zoned General Rural and, in this regard, the Proposal is in accordance with the objectives of the zone. Site location has, however, caused community concern with respect to primarily off-site impacts. Shire Officer[s] [are] of the view that an Environmental Management Plan, required as a condition of Planning Approval, could achieve mitigation techniques for most issues. The issue of odour, however, is very complex and subject to many variables as outlined by the Department of Environment Protection - Odour Methodology Guideline. An Odour Report was further submitted by the Applicant to demonstrate the potential off-site impacts by using a different data set, which resulted in an increased odour impact contour that potentially affects more residences in the area.
It is recommended that this Application should be approved subject to stringent conditions, including those related to odour compliance audit and stakeholder engagement. To this end, Shire Officers have imposed 20 conditions, which have been peer reviewed by [the] Shire's legal advisor, to manage potential impacts and establish a framework to enhance communication between the Applicant and local community, regardless of the opposition from the Applicant on most of the conditions. Council should bear in mind that as the Proponent may still have different opinions in relation to the planning conditions imposed, this Review may result in Final Hearing on conditions through SAT.
10 Following further mediation in this Tribunal, Member Marie Connor and Senior Sessional Member Peter Curry made the following orders on 28 February 2013 (emphasis added):
First issue: was planning approval given on 19 February 2013?
11 On the first issue of the proper construction of the resolution of 19 February 2013, I turn first to consider the authorities.
12 I commence by noting the remarks of Ormrod LJ in the United Kingdom Court of Appeal in the planning case Co-operative Retail Services Limited v Taff-Ely Borough Council (1980) 39 P & CR 223 (Taff-Ely), at 245:
In the present case, the answer depends on the true construction of the resolution [of the local Government] to be determined from its contents and in the light of the evidence of surrounding facts.
13 Earlier in that case, at 241, his Lordship had rejected 'any suggested restriction on the power of the court to investigate and get at the true facts in a case such as this'.
14 The court was there concerned with the true construction of a resolution of the Council that had led to a senior officer purporting to grant written planning permission under his own hand.
15 To similar effect in Australia, Wells J in the Supreme Court of South Australia said in Myer Queenstown Garden Plaza Pty Limited v City of Port Adelaide (1975) 33 LGRA 70, at 92:
[It] is essential, therefore, to look at the circumstances in which the resolution or proposition was made if it is to be given its fair and natural meaning.
It would, accordingly, be misleading to rely only on the bare words of the resolution disengaged from the events that led to, and resulted from, it being passed, and to look for unreason rather than for reason.
16 The critical facts in the case before me were that the Shire had been involved in a long and difficult process of negotiation, mediation and decision-making concerning the applicant's free-range egg farm proposal.
17 The Tribunal had, as part of that process, formally invited reconsideration of the Shire's refusal notified to the applicant on 3 September 2012. The manner of that reconsideration appeared to be a formal resolution of approval narrowly carried by a majority of the members of the Council of the Shire on 19 February 2013.
18 In my view, both the form and the substance of the resolution indicated formal conditional planning approval was being given. The officers' report to the Council, which accompanied the papers, is consistent with that characterisation. Both the Shire President and the Shire's CEO told me that they considered this to be a grant of conditional planning approval. Although, with respect, their opinions are not determinative of the issue, their views could not be said to be irrelevant. This is especially so since the task of the Tribunal is, as his Lordship said in Taff-Ely, to 'get at the true facts'.
19 It is plain also that the Tribunal's mediators considered that the matter had been substantially settled with their order of 28 February 2013 (see above) where they referred to the 'remaining issues in dispute'. In my view, the applicants received sufficiently certain planning approval on 19 February 2013 with the parties agreeing to work, as may be necessary, on the detail of certain subsidiary conditions.
20 If needed, the Tribunal could determine any outstanding issues of detail found in those conditions. This is a common enough occurrence in this Tribunal and, in any event, no party ought to be able to resile from such an agreed position. As Snook and Western Australian Planning Commission [2012] WASAT 38 illustrates, the Tribunal will, if and as necessary, use all of the tools at its disposal to ensure that the 'continuum' of the decision-making process as between the original decision-maker and the Tribunal results in a transparent and binding process along the way towards the final resolution of any matter.
21 Now, none of this would be in any way contentious or unusual except that in this case the respondent only became aware, it appears, in May 2013 of the fact that the hens in the applicant's proposal may not be wholly confined to the otherwise approved layer sheds and associated patio and verandah structures.
22 I note finally that if, having regard to certain photographs that were tendered and related evidence, the final configuration of the egg farm is to be generally similar to the applicant's Victorian operations (located at Bears Lagoon), then the birds will likely, it seems, congregate close to the sheds for a lot of the time. I will return to comment briefly on the Victorian operation in a moment.
Second issue: what is the scope of that planning approval?
23 I commence by setting out the well-settled principles on the interpretation of and consequences that follow the grant of planning approval.
24 In the New South Wales Court of Appeal's recent decision in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, Meagher JA said, at [42] - [47] (citations omitted; emphasis added):
The relevant principles are, in some respects, more easily stated than applied. The task is to construe the document constituting the consent mindful of the fact that the approval is a unilateral act of the consent authority which has an enduring function. The consent is not the result of a bargaining process between two or more parties, and is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. Its meaning must be determined objectively, having regard to these matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority. To that extent, the principles of construction appropriate to contracts, which provide that in the case of ambiguity or uncertainty reference may be made to surrounding circumstances known to the relevant parties, do not apply ...
The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication ...
Evidence may also be led to identify a thing or place referred to in the consent ... That evidence is not led to vary the consent but to identify the thing referred to in it. Evidence as to the nature or physical features of the land or site may also be admissible for that purpose ...
A document which is attached to the consent or otherwise referred to in it for the purpose of identifying or describing something dealt with in the consent will, for that reason, be expressly incorporated in it ... However, the mere reference to a document, such as a development application, is usually not sufficient to constitute express incorporation for this purpose. In each case, whether the reference is sufficient will depend upon the reason for the reference as appears from the consent itself ...
A document which is attached to the consent or otherwise referred to in it for the purpose of identifying or describing something dealt with in the consent will, for that reason, be expressly incorporated in it .... However, the mere reference to a document, such as a development application, is usually not sufficient to constitute express incorporation for this purpose. In each case, whether the reference is sufficient will depend upon the reason for the reference as appears from the consent itself ...
What is sufficient to constitute incorporation, by necessary implication, for the purpose of these principles is less clear. If the consent in terms does no more than approve the application, it will be necessary to go to the application at least to identify the subject matter of the consent ... A consent in those terms would not necessarily have the effect of incorporating all of the matters dealt with in the application. For example, general matters of fact or assertions of intention furnished or made for the purpose of informing the consent authority of the nature of the development, are not likely to be incorporated[.]
25 His Honour then goes on to consider, at [48], the position in South Australia:
A similar exposition of the circumstances in which reference may be made to documents which are not expressly incorporated in the consent, is given in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; (2004) 137 LGERA 189 in the judgment of Doyle CJ (with whom Duggan and Anderson JJ agreed). In summarising the principles by reference to which a court should interpret a development consent, Doyle CJ said (at [45]) that it was usually the case that a consent 'will be meaningless' without reference to the plans and proposals submitted and, that being the position, it 'must be permissible' when deciding the 'meaning, scope and effect of a development authorisation, to refer to the plans or other documents constituting the proposal submitted for authorisation'[.]
26 The position in Queensland is generally the same as in New South Wales. In Brisville Pty Ltd v Brisbane City Council [2007] QPEC 63; [2007] QPELR 637; (2007) 1 PDQR 165, Rackemann DCJ set out similar comments about the public nature of the document. His Honour said, at [7] - [9] (citations omitted; emphasis added):
The development approval is a public document, which constitutes the decision of the local authority, expressed in a formal manner and is required to operate in accordance with its terms. It is not personal to the applicant. It runs with the land and may be relied upon by many persons dealing with the grantee (or others exercising the rights conferred by it). A breach of its terms may ... result in proceedings not only at the instance of the local authority, but by any person. In construing an approval, the search is not for what the Council may have intended or the applicant understood. Each approval must speak according to its written terms, construed in context, but having regard to its enduring function.
Accordingly, the construction of a development permit is undertaken having regard primarily to the terms of the approval, as it appears on its face, together with other material, such as approved plans, where they are incorporated expressly or by necessarily implication. An explanatory statement in the approval itself may also be considered. The process of construction is however, to be aided only by evidence admissible in relation to construction and which establishes or helps to establish the true meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council.
Permissible extrinsic evidence may include evidence of the 'physical reality' as at the time of approval (eg. the nature of the site and, I accept, its context), if that assists in understanding the subject matter and meaning of the approval or a condition contained within it. Expert evidence may also be called to explain technical terms. The scope for extrinsic evidence is however, limited.
27 Later, at [14], his Honour noted the existence of 'longstanding authority to the effect that ambiguity may be resolved in favour of the construction which places the least burden on the land owner'. Ultimately, his Honour determined the matter 'without [the need for] recourse to the principle of resolving ambiguity in favour of the construction which places the least burden on the land owner' (at [47]).
28 In Transpacific Industries Group v Ipswich City Council [2012] QPEC 69 (Transpacific), Robin QC DCJ noted that:
... in a case of ambiguity, [the principle that] development approvals are construed in the way most favourable to (or placing the least burden on) the landowner is established locally in Matijesivic v Logan City Council [1984] 1 Qd R 599 at 605. In this court [the Planning and Environment Court] the principles have been applied many times, an early incidence being Hawkins and Izzard v Permarig Pty Ltd (No. 1) [2001] QPELR 415.
29 Also in Transpacific, at [12], Robin QC DCJ referred to what is a leading authority in this area of the law: the decision of Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321.
30 The Supreme Court of New South Wales was concerned there with a dispute about whether a hospital laundry, which had received planning approval and had indicated that its operating hours would be from 7.30 am to 4.30 pm ought to be restrained from exceeding those hours. Relevantly, the operating hours limitation never appeared in any part of the planning approval. His Honour said, at 323 - 324 (omitting citations; emphasis added):
Upon this material the plaintiff contended that the development consent was a consent to the application in the terms in which that application was framed, so that the proposed hours became a term or condition of the consent binding the defendant to their observance as a matter of law ...
It was submitted on the basis of [previous decisions] that it was not necessary for all the conditions of a development consent to be incorporated in the consent or other document which purported to operate as a consent, and that in the absence of any limitation or express statement to the contrary the consent to the application should be read and construed as incorporating as conditions all the matters set out in the form of application.
I have no doubt that the first of these submissions is sound and that a consent can incorporate conditions contained in another document. But the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application. For one thing, many of the matters so stated are general matters of fact or assertions of intention furnished or made for the purpose of informing the council of the nature of the development, and for another, an application will often consist of or be supplemented by informal documents and even oral statements made by or on behalf of an applicant. Serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent.
In the present case, the fact that there was no formal consent was urged as a reason for treating the terms of the application as conditions of the consent, but that fact seems to me to point in the contrary direction; and indeed, for what it is worth, the only conditions recorded in the council's register are simply not capable of being construed in an extensive fashion.
It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title.
I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.
31 These principles are both universal and foundational to planning law in Australia and elsewhere: see, for example, Planning & Environment (Vic) (LexisNexis) at [5.1.10] and [5.1.15]; see, also, the United Kingdom authority cited in Taff-Ely, at 238.
Application of these principles to the facts of the case
32 Notwithstanding the submissions of Mr Nicholson for the Shire to the contrary, there is nothing in the evidence and material that has been produced to me that suggests with any degree of certainty (to the standard required by planning law) that the hens were, in fact, to be confined, as was assumed by the Council, and its staff and elected members.
33 In particular, no conditions to this effect were imposed by the Council. This is despite, for example, an express resolution of the Council itself, on 17 April 2012 (12.0076), which expressly required the odour report to '... incorporate[e] the outside free range conditions'.
34 There is, in any event, no evidence before me that any assurance or clear statement was ever made by or on behalf of the applicant to the effect that the hens were to be so restrained. And, critically, even if such events had occurred, they would not form part of the development approval on the authorities that I have just referred to at some length, unless, that is, such matters found their way into the conditions or terms of approval.
35 This would be the case for the odour reports as well (that is, the 'Odour Impact & Dispersion Modelling Assessment of Proposed Free-Range Egg Layer Farm'), which were supplied by the applicant to the Council. They did not, in the form that they appeared, become part of the approval, except as to the odour limits predicted by them on the modelling then undertaken: see condition 9, imposed by the Shire on 19 February 2013. But, even if they did form part of the approval as the Shire suggested, they contain, at best, ambiguous references, referring as they do, for example, to:
... verandah/annexes between each shed and surrounding to provide the free-range yards for birds to roam.
Read in their proper context, these references do not prescribe the extent of the birds' free-range activities.
36 Indeed, the slightest research, if it had been undertaken at the time of the giving of the approval, would show that free-range egg farms, by definition, often require substantial non-cage or non-barn runs: see, for example, the Australian Competition and Consumer Commission's publicly available Initial assessment of Certification Trade Mark application CTM1390450 filed by the Australian Egg Corporation Limited (2 November 2012) at [29] - [38] which discusses various standards and definitions for free-range eggs. This was a document produced for this hearing by the respondent.
37 There is also the major Victorian case of Heath Hill Poultry Pty Ltd v Cardinia Shire Council [2012] VCAT 1444; (2012) 45 VPR 131. Although that was a case dealing with free-range poultry farms, the Tribunal there noted, at [26]:
... The free range areas will not be a bucolic idyll of open paddocks, but an area 150 metres long by 22.5 metres wide accessible by 40,000 birds for 8 hours per day. [The Tribunal is] not in a position to know what state the free range area will be in at the end of each batch; whether it will be a dust bowl or still have patches of grass[.]
38 The applicant, it is now clear on what I have heard and read in this case, sought to, in effect, have sufficient flexibility to meet changing standards of animal welfare or trade descriptions imposed upon it directly or indirectly by either the regulatory agencies of government or the major wholesale purchasers of eggs, such as Coles Supermarkets. These standards might tend to increase or reduce the precise extent of any free-range boundaries beyond the core operations found in the layer sheds.
39 In any case, as I have already noted above, the applicant's Victorian operation at Bears Lagoon, as it appears to be presently configured, suggests that during the day the birds tend to concentrate very close to the layer sheds, which are their source of warmth, water and food, shade, shelter and protection from predators.
40 The concerns of the Shire's elected members, staff and residents may, in practice, be much, much less than those that have been feared. The Gingin operation must, of course, continue to meet the standards imposed upon it by the Shire, including particularly the standards of odour control on the modelling that has been referred to.
41 For these reasons, I have concluded that there was a valid grant of planning approval but not one prescribing the precise limits of the hens' free-range areas, an approval subject, however, to a consensual process (reflected in the Tribunal's orders) for the finalisation in non-essential respects of certain operational matters.
42 I will hear from counsel, but in view of the conclusions that I have reached, the matter should not go, I think, at least at this stage, to a final hearing, but rather, the dates that have been reserved should be used for further mediation to resolve these outstanding matters.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2004) 137 LGERA 189