Town planning ­ Preliminary issue ­ Whether use is capable of approval ­ Manufacturing blocks for retaining walls using reconstituted laterite or limestone, mixed with cement and water ­ Land use classification ­ Whether use is classified as 'industry ­ rural' or 'industry ­ general' ­ Whether laterite and limestone are 'rural products' ­ Whether 'industry ­ rural' includes manufacturing of non­rural products ­ Words and phrases: 'processing', 'rural products'

Planning and Development Act 2005 (WA), s 214(3), s 252(1), s 255(1)

Town Planning Regulations 1967 (WA), Appendix B

1 Mr Phillip Attwell manufactures blocks for retaining walls on his Rural zoned property near Albany. The blocks are manufactured by mixing screened laterite or limestone, obtained locally, with cement and water. Mr Attwell does not have development approval for the use.

2 The City of Albany directed Mr Attwell to cease the use, and Mr Attwell sought review of this decision by the Tribunal. Mr Attwell also applied for development approval to authorise the use and subsequently applied for review by the Tribunal of the City of Albany's refusal to grant him approval.

3 The City of Albany identified a preliminary issue in both proceedings as to whether the use of the site for block manufacturing is capable of approval. This turned on whether the use is properly classified as 'industry - rural', which means 'an industry handling, treating, processing or packing rural products'.

4 The Tribunal determined that the use is not classified as 'industry - rural' and is therefore not capable of approval. The Tribunal decided that laterite and limestone are not 'rural products'. The Tribunal also decided that, even if these minerals were 'rural products', the use does not involve the 'processing' of rural products, because it results in the manufacture of a new non-rural product, namely blocks.

5 The Tribunal therefore refused to grant development approval and adjourned the review of the direction to enable the parties to consider their positions.

6 Mr Phillip Attwell manufactures blocks for retaining walls on his property at No 14 (Lot 1896) Attwell Road, Cuthbert (site), which is located approximately 8 kilometres west of the central business district of Albany. The blocks are made from reconstituted laterite or limestone, mixed with cement and water.

7 The laterite and limestone materials are obtained from three properties located within 5 kilometres of the site. The laterite and limestone is transported to the site in an essentially unprocessed form and stockpiled. The rock is screened through a machine to create aggregate. The aggregate is added to cement at a ratio of 90% aggregate to 10% cement (by weight). Water is then added to the mixture. The resulting mixture is transferred to a machine which processes it into blocks.

8 Mr Attwell does not have development approval to use the site for block manufacturing. On 27 June 2008, the City of Albany (City or Council) issued a direction to Mr Attwell under s 214(3) of the Planning and Development Act 2005 (WA) (PD Act) to cease the use of the site described in the direction as 'unauthorised brick manufacturing/Industrial land use'. On 18 August 2008, Mr Attwell applied to the Tribunal for an extension of time in which to seek review of the direction under s 255(1) of the PD Act. On 5 September 2008, the Tribunal granted an extension of time in which to seek review (proceedings DR 301 of 2008).

9 On 17 October 2008, Mr Attwell lodged a development application with the City for approval under the City of Albany Town Planning Scheme No 3 (TPS 3 or Scheme) for the use of the site for block manufacturing. On 17 December 2008, the Council refused to grant development approval 'on the basis that the land use proposed is a prohibited land use within the 'Rural' zone'. On 5 January 2009, Mr Attwell sought review of this decision under s 252(1) of the PD Act (proceedings DR 2 of 2009).

10 The site is zoned 'Rural' under TPS 3. In this zone, a land use that is classified as 'industry - rural' is capable of approval by the Council in the exercise of discretion, whereas a land use classified as 'industry - general' is prohibited.

11 It is common ground between the parties that the use of the site for block manufacturing is an 'industry' for the purposes of TPS 3. The term 'industry' is relevantly defined for the purposes of TPS 3 in Sch 1 of the Model Scheme Text (MST) in Appendix B of the Town Planning Regulations 1967 (WA) to mean 'premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances ...'.

12 The term 'industry - general' is defined for the purposes of TPS 3 in Sch 1 of the MST as follows:

Industry - general means an industry other than a cottage, extractive, light, mining, rural or service industry;

13 It is common ground that the use of the site is not a cottage, extractive, light, mining or service industry.

14 The City has identified a preliminary issue for determination in both proceedings as to whether the use of the site for block manufacturing is capable of approval under TPS 3. The determination of the preliminary issue turns on whether block manufacturing is properly classified as 'industry - rural' under TPS 3.

15 The term 'industry - rural' is defined for the purposes of TPS 3 in Sch 1 of the MST as follows:

(a) an industry handling, treating, processing or packing rural products; or

(b) a workshop servicing plant or equipment used for rural purposes;

16 If the use is classified as 'industry - rural', then it is capable of approval in the exercise of discretion. If, however, the use is not classified as 'industry - rural', then it is common ground that it is classified as 'industry - general', and is prohibited.

17 Dr SJ Willey, who appeared with Mr R Mascarenhas on behalf of the City, argued that the use of the site for block manufacturing is not properly classified as 'industry - rural' for each of two principal reasons.

18 First, Dr Willey submitted that laterite and limestone are not 'rural products' for the purposes of TPS 3. Referring to the dictionary meaning of 'rural' and to the objectives of the Rural zone in TPS 3, Dr Willey argued that a 'rural product' is 'a product that is of, or pertains to the cultivation of land, including crop-raising, forestry, stock-raising and farming'.

19 Dr Willey also referred to the definition of 'industry - extractive' in Sch 1 of the MST, which applies in relation to TPS 3, and which states as follows:

Industry - extractive means an industry which involves the extraction, quarrying or removal of sand, gravel, clay, hard rock, stone or similar material from the land and includes the treatment and storage of those materials, or the manufacture of products from those materials on, or adjacent to, the land from which the materials are extracted, but does not include industry-mining;

20 Dr Willey argued that the specific reference to rock and stone in the definition of 'industry - extractive' indicates that these materials are not 'rural products' for the purposes of TPS 3.

21 Second, Dr Willey submitted that, as the definition of 'industry - rural' does not include 'manufacture', whereas the definition of 'industry' includes this word, 'industry - rural' excludes the manufacture of goods.

22 In response, Mr CA Slarke, counsel for Mr Attwell, submitted that 'rural' products are not restricted to agricultural products. Laterite and limestone are 'rural' products, because they are characteristic of, or characteristically produced in, rural areas. In this regard, Mr Slarke suggested that 'rural' products are synonymous with 'natural' or 'primary' products. Mr Slarke referred to the decision of the New South Wales Land and Environment Court (Bignold J) in Australian Native Landscapes Pty Ltd v Warringah Shire Council (unreported, NSW LEC, No 10195 of 1988 and No 10256 of 1988, 8 February 1989) (Australian Native Landscapes) at 14 where the Court determined that, in the particular statutory context, gravel and quarry products were 'primary products', and that the 'handling' of these products was therefore properly classified as a 'rural industry'. Mr Slarke submitted that rock is a natural and primary product.

23 In response to the City's reference to the definition of 'industry - extractive', Mr Slarke conceded that the use of the site would fall within the second part of that definition if the use took place on or adjacent to the land from which the rock is extracted, but submitted that it does not follow that rock is not a 'rural product' within the meaning of the definition of 'industry - rural'.

24 Mr Slarke also argued that it is implicit in the inclusion of 'processing' in the definition of 'industry - rural' that such an industry may involve the manufacturing of a thing; 'when materials undergo 'processing' the end product is inevitably, or at least often, something which has been manufactured'. In support of this proposition, Mr Slarke referred to the decision of the Supreme Court of Western Australia (Ipp J) in Harman v Shire of Denmark (unreported, Library No: 950443, 24 August 1995) in which the Court found that a winery fell within a relevantly identical definition of 'industry - rural'. Mr Slarke argued that, similarly, a dairy may manufacture butter, yoghurt or cheese, and a farm that produces olives for pressing and packing may manufacture olive oil.

Is the use of the site for block manufacturing capable of approval?

25 The adjective 'rural' is defined in The Macquarie Dictionary (Macquarie, Sydney, 4th Edition, 2005) at page 1241 as follows:

1. of, relating to, or characteristic of the country (as distinguished from towns or cities), country life, or country people; rustic. 2. Living in the country. 3. of or relating to agriculture: rural economy.

26 The noun 'product' is relevantly defined in The Macquarie Dictionary at page 1135 as follows:

1. a thing produced by an action or operation, or by labour; an effect or result. 2. something produced; a thing produced by nature or by a natural process.

27 While laterite and limestone are 'products', because they are something produced by nature or by a natural process, they are not relevantly 'rural' products. Rocks are not 'of, relating to, or characteristic of the country (as distinguished from towns or cities)'. The country/urban dichotomy suggested by the first definition of 'rural' set out earlier is simply not apposite in the case of rocks. Rocks are found both in the country and in urban areas. While, owing to potential adverse amenity consequences of extraction, such as dust and noise, excavated materials are usually obtained in country areas, rather than in urban areas, this is not always the case. Extractive materials are obtained in various parts of the Perth metropolitan region and in urban locations elsewhere, such as the 'Super Pit' in Kalgoorlie-Boulder. Clearly, also, laterite and limestone do not relate to agriculture.

28 Furthermore, the definition of 'industry - extractive', which forms part of the suite of 'industry' related definitions, indicates that extractive materials such as rock and stone are not 'rural products' within the meaning of the definition of 'industry - rural'. The suite of definitions clearly distinguishes between 'rural products' and extractive materials such as rock and stone.

29 While laterite and limestone may be 'natural' or 'primary' products, as Mr Slarke suggested, the definition of 'industry - rural' does not use these words, and the ordinary meaning of 'rural' is not synonymous with the meaning of either of these words. The decision of the NSW Land and Environment Court in Australian Native Landscapes is distinguishable, because the definition of 'rural industry' in the planning instrument considered in that case included 'primary products', rather than 'rural products'.

30 Contrary to the City's contention, the definition of 'industry - rural' does not exclude manufacturing. The verb 'process' is relevantly defined in The Macquarie Dictionary at page 1134 as follows:

11. to treat or prepare by some particular process, as in manufacturing. 12. to convert (an agricultural commodity) into marketable form by some special process.

31 However, assuming that laterite and limestone are 'rural products', the use of the site for block manufacturing does not constitute 'an industry ... processing ... rural products'. Other than the screening to create the aggregate, the industry carried on at the site does not 'treat or prepare by some particular process, as in manufacturing', rural products, and does not convert rural products into marketable form by some special process. Rather, the use involves the creation of a new, non-rural product by mixing laterite or limestone with cement and water.

32 A winery, a dairy producing butter, yoghurt or cheese, and a farm producing olive oil, would each be properly classified as 'industry - rural' under TPS 3, because it is 'an industry ... processing ... rural products'. While they each involve the manufacturing of a new product from a rural product, namely wine from grapes, butter, yoghurt or cheese from milk, and olive oil from olives, the manufactured product is itself a rural product, and the manufacturing process therefore satisfies the definition of 'industry-rural'.

33 However, a land use is not properly classified as 'industry - rural' where it involves the manufacturing of a non-rural product, even though the ingredients in the manufacturing process are, or are substantially, rural products.

34 A purposive interpretation of the Scheme provisions arrives at the same result. The purpose of the 'industry - rural' use class is to enable the handling, treating, processing or packing of rural products in rural locations. The purpose is not to enable the manufacturing of non-rural products, even though the ingredients in the manufacturing process may be wholly or substantially rural products. If Mr Slarke's argument were correct, a brick factory would be classified as 'industry - rural'. This could not have been the intention of the Scheme.

35 It follows that the use of the site for block manufacturing is not classified as 'industry - rural' under TPS 3, because laterite and limestone are not 'rural products' and, even if they were, the blocks that are manufactured are not 'rural products'. The use is, therefore, classified as 'industry - general' under the Scheme and is not capable of approval.

36 The use of the site for the manufacturing of blocks for retaining walls is not properly classified as 'industry - rural' under TPS 3. As this use is clearly an 'industry' for the purposes of the Scheme, but is not a cottage, extractive, light, mining, rural or service industry, it falls within the default category of 'industry - general', and is prohibited on the site under TPS 3.

37 It follows that the application for review of the City's decision to refuse development approval under TPS 3 for block manufacturing at the site should be dismissed and the decision of the City should be affirmed.

38 The application for review of the City's decision to give the direction to Mr Attwell to cease the current use of the site should be adjourned to a directions hearing to enable the parties to consider their positions.

The current use of No 14 (Lot 1896) Attwell Road, Cuthbert for the manufacturing of blocks is not capable of approval under the City of Albany Town Planning Scheme No 3.

1. The proceedings are adjourned to a directions hearing at 10.30 am on 20 March 2009.

The current use of No 14 (Lot 1896) Attwell Road, Cuthbert for the manufacturing of blocks is not capable of approval under the City of Albany Town Planning Scheme No 3.

2. The decision of the respondent made on 17 December 2008 to refuse development approval for the use of No 14 (Lot 1896) Attwell Road, Cuthbert for the manufacturing of blocks is affirmed.

I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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