Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400

"The use of the land is not 'in conjunction with agriculture or natural systems' and therefore does not comply with the provision of Clause 57 Core Planning provision for Metropolitan Green Wedge."

4 This ground reflects a requirement of the planning controls governing the permissibility of the proposed educational use.

5 The school appealed the decision of the responsible authority and the matter came before the Victorian Civil and Administrative Tribunal ("the Tribunal") in March and April of this year. The permissibility of the proposed use was again the subject of contention but the Tribunal formed the view that the proposed education centre would be used in conjunction with agriculture and natural systems (as defined) and hence was permissible and that the proposal was acceptable on its merits. In June of this year it directed that a permit issue subject to conditions.

6 The appellants now seek to challenge the Tribunal's decision on two bases contending:

(a) that it was not open to the Tribunal to characterise the proposed use as an education centre used in conjunction with agriculture or natural systems; and

(b) that the Tribunal failed to consider whether on the proper construction of the planning scheme, two of the proposed uses namely agriculture and natural systems were in fact no more than uses which were ancillary to the proposed use for an education centre.[1]

The Control

7 The planning control in issue is a transitional control which reflects a compromise.

8 The Tribunal set out the history of the relevant provisions in its decision:

"13 At the time the application for permit was lodged with the Shire, the land was zoned Environmental Rural under the Cardinia Planning Scheme. The purpose of this zone, in addition to implementing the State and Local Planning Policy Framework, is: •To give effect to the environmental outcome specified in the schedule to this zone. [2]

• To conserve and permanently maintain flora and fauna species, soil and water quality and areas of historic, archaeological and scientific interest and areas of natural scenic beauty or importance so that the viability of natural eco-systems and the natural and historic environment is enhanced.

• To encourage development and the use of land which is in accordance with sound management and land capability practices and which takes into account the environmental sensitivity and the bio-diversity of the locality ...

14 Within this zone education centre is a Section 2 use, meaning that a permit is required pursuant to Clause 31.01-2 of the scheme. However, in June 2003, prior to the application being lodged with the Responsible Authority, the Clause 57, Metropolitan Green Wedge Land provisions were introduced and with these, the Core Planning Provisions at Clause 57.01 and the table to that clause. The table provides that for land outside the Urban Growth Boundary (which is the case here) an education centre is prohibited unless the conditions set out in the table are met. The conditions to be met are:

Must be used in conjunction with Agriculture, Natural systems, Outdoor recreation facility, Rural industry, or Winery.

No more than 150 students may be present at any time.

15 In May 2004, as part of the implementation of the Green Wedge initiatives in the Metropolitan Strategy - Melbourne 2030, and following lodgement of the application, the land was rezoned to Rural Conservation 2. Within this zone an education centre is prohibited outright. However, the Transitional Arrangements at Clause 57.02 provide, in effect, that applications lodged prior to 19 May 2004 must be assessed as though this zone had not been introduced. Accordingly this an application made under the Environmental Rural Zone provisions, as further confined by the Core Planning Provisions. It should also be noted that the land is within an Environmental Significance Overlay - Schedule 1. Because the application is for use only, the provisions of the Overlay are not invoked. Relevantly however the objectives of the Overlay have much in common with the purposes of the zone, that is they recognise the environmental values of land and seek to ensure that these are considered and protected.

9 The Tribunal addressed the requirements of the transitional provision contained in cl.57 as a threshold issue.

10 It dealt first with the meaning of the requirements:

"19. Agriculture, natural systems and education centre are all defined terms in the Cardinia Planning Scheme.[3] The expression in conjunction with is not. Accordingly, as provided for at Clause 71 of the Scheme, the term is to be given its ordinary meaning. All of the parties to this proceeding relied on the Macquarie Dictionary definition of conjunction namely the state of being conjoined; union; association. I was also referred to a number of Victorian Tribunal decisions and to decisions of the New South Wales Land and Environment Court that had considered the meaning of the expression. In the case of the NSW decisions the Court had also relied on the Macquarie definition. The VCAT decisions made no such reference.."

11 It was not submitted that this passage demonstrated any error of law and in my opinion it does not.[4]

12 Insofar as the ordinary meaning of the phrase "in conjunction with" may be thought to involve some potential uncertainty, it was common ground before the parties that it required a functional nexus between the uses and not merely co-location. Both the New South Wales and VCAT decisions to which the Tribunal referred proceed on this basis.[5] In turn the Tribunal addressed the facts in this case on this basis and in my view it was correct to do so.

13 The Tribunal then went on to conclude as a matter of fact that the proposed education centre would be used in conjunction with both agriculture and natural systems.

"20. Having considered the submissions, further submissions and evidence concerning the nature of Steiner Schools, their history, philosophical basis, curriculum and the means by which the curriculum is developed and passed on, it is my conclusion that as a general principle the Steiner School curriculum is best taught in a location or environment where there is an opportunity for the students to engage both functionally and aesthetically with agricultural pursuits and natural processes.

21. I am persuaded also that, considered as a whole, and taking into account what might be an appropriate scale of activity that could be said to be commensurate with the skills and capabilities of primary level school children, that the proposal can be said to constitute a conjunction, union or association of education with agriculture, i.e. plant propagation, cultivation and harvesting, and natural systems, i.e. maintaining, improving and learning from and about the ecological values of the site's remnant bushland and its association with adjoining bushland."

14 An appeal to this Court pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 lies only on a question of law.

15 Accordingly, it is necessary for the appellants to demonstrate that the Tribunal's conclusions on the facts of the case were vitiated by an error of law. This Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal.[6]

16 The appellants contend the Tribunal proceeded on the following bases:

(a) First, treating the permit application basically as an application to use the subject land for the purpose of a school, it applied the relevant condition to the application, by considering whether the proposed curriculum would include the study or practical application of any of the activities comprised in the planning scheme definitions of "agriculture" or "natural systems".

(b) Secondly, having decided by reference to those definitions that the curriculum would cover some or all of such activities, no matter how lightly (given the fact that the scale would be commensurate with the capabilities of primary level children) it decided that the subject land would be used for all three purposes in conjunction.

"The application of the relevant condition requires an exercise of a very different nature. The Tribunal should have decided whether having regard to the information in the permit application, and in evidence, it was satisfied that the subject land would be used for three distinct purposes, namely education centre, agriculture, and natural systems.

The way it should have proceeded was discussed by Kitto J in Shire of Perth v O'Keefe[7] and Tadgell J in Franceschini v MMBW & Ors[8]. Kitto J described it in the following passage[9] of Shire of Perth v O'Keefe:

'The application of the by-law in a particular case is therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise catalogue of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material dates.' (Underlining added.)"

(References taken to foot.)

18 In argument these propositions were elaborated by specific reference to the concept of ancillary use. It was submitted that if the evidence disclosed the uses for agriculture or natural systems would and could be no more than ancillary uses, then they would not amount to uses capable of meeting the requirements of cl.57 of the planning scheme. In particular it was submitted they would not be uses for separate purposes and the education centre would not be operated in conjunction with them.

19 This submission is to be understood in the light of the underlying concept articulated by Tadgell J in Franceschini[10]:

"I took one unexpressed underlying premise of the argument to be that, unless the Tribunal could be satisfied that the avowed purpose of the proposed use by the foundation was one which it could actually carry out having regard to its disclosed intentions, then there was no legitimate reason to direct that a permit be granted; and hence there was no power so to direct. I suppose, more accurately, it might be said that an exercise of the power in those circumstances would involve an abuse of the power."

20 In response, the school submits that the Tribunal had extensive evidence before it of the involvement of existing Steiner schools in agricultural and environmental activities, and of the curriculum and activities proposed upon the appeal site. The school submits the Tribunal found that the proposed uses met the requirements of cl.64 and such findings were open to it.

21 Further, it is submitted the appellants' case was not put to the Tribunal on the basis that the proposed uses for the purposes of agriculture or natural systems constituted ancillary uses, it was put on the basis that the uses did not constitute separate uses of any substance at all.

The Ancillary Use Question

22 It is convenient to deal first with the ancillary use question. The affidavit material demonstrates the argument now put to the Court was not put to the Tribunal, nevertheless it bears directly on the proper construction of cl.57 and given the conclusion I have reached with respect to it, no question of prejudice to the school arises.

23 In my opinion the requirement that proposed uses be conducted in conjunction with each other does not fall to be determined by reference to the notion of ancillary use.

24 Clause 64 of the planning scheme provides:

"If land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme."

25 It follows that where the real and substantial purpose of land use is that of an institution such as a school or hospital, such purpose may encompass individual ancillary components of land use such as a café or industrial use, which would otherwise either be prohibited or require separate permission. Thus historically it may be the case that the plant propagation use at the depot constituted agriculture but was an ancillary element of the water authority's depot.

26 The application of cl.64 presupposes that a subsidiary land use can be identified and ascertained to operate upon land, but nevertheless the purpose of such use is properly understood as subsumed in a larger purpose for which the land is otherwise used.

27 Clause 64 necessarily contemplates that a use otherwise identified in the planning scheme may be an ancillary use, albeit that if it is ancillary it need not itself comply with the scheme.

28 It is always possible that land will be used for two or more purposes, each of which is independent and none of which can be regarded as ancillary to the other.[11]

29 Clause 57 does not require the application of the concept of ancillary use. It simply requires the ascertainment of separate uses upon the land which are undertaken in conjunction with each other. Such uses may or may not involve an ancillary use. The requirement for a functional nexus between the uses raises the real possibility that one or other use may be ancillary to another use but this question is not determinative of their lawfulness. What is required is separate identifiable uses carried on in conjunction with each other.

30 The New South Wales Land and Environment Court has had occasion to consider a series of planning controls utilising the phrase "in conjunction with", including provisions pursuant to which shops were permissible only if "ancillary to or used in conjunction with other development permissible in this zone which serve the daily convenience needs of the workforce within this zone."[12]

31 In Winten Property Group v Campbelltown City Council[13] the Court considered a requirement that "dwelling houses (be) used in conjunction with development for other permissible purposes." Sheahan J considered the earlier authorities and accepted the following submission concerning the proposal before him for dwelling houses to be constructed and used together with a club house and recreational facilities (which were permissible uses):

"The uses are as a consequence inextricably entwined as required by the management plan. Dwelling house uses are not specifically permissible unless contained within a community scheme. Whether in other circumstances or in other planning instruments some of the expressly and separately defined cl8 uses would be ancillary to or subsumed in, other uses is beside the point. Cl8 specifically identified separately those uses for the purposes of definition and permissibility." (My emphasis)

32 Likewise, in the present case it is irrelevant whether in other circumstances an educational use would be permissible as ancillary to agriculture or natural systems or vice versa. Clause 57 specifically identifies separately those uses for the purposes of defining the permissibility of education centre.

33 What is required by cl.57 is simply that the uses specified be real and identifiable uses and that they operate in conjunction with each other.

The Characterisation of the Facts

34 It was properly conceded during the course of argument by Mr Porter on behalf of the appellants that the Tribunal did have before it evidence upon which it could conclude agriculture would be a use of the land.

35 In my view the Tribunal's reasons make clear that it specifically concluded both that agriculture would be conducted on a small scale in conjunction with the proposed education centre and that a part of the site would be used for the purposes of natural systems. The Tribunal stated in part:

"... in view of the primary level nature of the school, I see no reason why the scale or extent of horticultural activity and bushland nurturing should not be to a scale commensurate with the capabilities of primary level children. The planning scheme places no limitations on scale, nor does it require commercial application. There are many places in the world where subsistence agriculture is practiced without involving commercial application and where the activity is small scale, commensurate with the needs of the particular family or clan group."[14]

36 These conclusions were based on an assessment of the relevant evidence (which it is unnecessary to analyse in detail) that included both a master plan and description of proposed use. For present purposes it is sufficient to record that the Tribunal accepted the following summary put forward by counsel for the school:

"The evidence before the Tribunal establishes that agriculture, within its defined meaning in the Planning Scheme, will be conducted as an integral part of the school curriculum. The agriculture to be carried out will include the cultivation of plants including flowers, fruit, seeds, trees and vegetables and the keeping of small animals like chooks.

While the agriculture will be small in scale and may not be for commercial gain, it will be conducted as a scale and intensity appropriate to the site and to the age of the children and their learning needs. The engagement of children in planting, weeding and harvesting will form a structured part of their curriculum and will facilitate their understanding of food production and its relationship to the natural environment. The children will not merely have an interest in these agricultural activities (the minimal requirement suggested in Sweeny) they will be directly involved with them.

The contention by the Responsible Authority and the Green Wedge Coalition that these agricultural activities are a 'token gesture' or a 'token use' reflects a lack of understanding of the kind of activities permitted by the Planning Scheme and the important function they serve in the education of children in accordance with the Steiner philosophy. The definition of agriculture is very wide and is not limited by prescription as to minimum size of the site or whether or not the activity is for commercial purposes.

Moreover a broad construction of the term 'agriculture' must be given to accord with Clause 21.06-2 of the Municipal Strategic Statement - Strategies for Agriculture:

• Encourage research and education in relation to agricultural activities.

• Encourage responsible land management to minimise environmental degradation by pest plants and animals.

It is also intended that the proposed school will operate in conjunction with natural systems. The remnant bushland area identified in the horticultural report by Mr Duggan remains in its natural state (although degraded to some extent by introduced weeds/species) and is a small eco-system which should be preserved and protected. Alternatively it is an area of aesthetic significance which should be preserved.

The school will be able to use the remnant bushland as part of the education of children on the natural environment, who walks in this area and collection of nuts, leaves and other natural products of the bush. It will also be able to protect and preserve the area by weed identification and removal. Again these activities will not be merely incidental to the use of the site for a school but will form an integral part of the education of children in the relationship between humans and the natural environment. ..."[15]

37 The characterisation of the Tribunal's approach as superficial which was put forward by the appellants to this Court (as set out previously above) does not do justice to the Tribual's reasons and in my view those reasons do not disclose any failure to find facts sufficient to justify the decision.

38 More particularly, both the Tribunal's reasons and the evidence before it demonstrate that contrary to the appellants' submission it was open to the man in the street to conclude use for "agriculture" was proposed and that part of the site would be used for "natural systems". Consequently, the Tribunal's conclusions were not so "odd and inapprorpriate" as to lead to the concusion they were not open to it.[16]

39 I would only add that despite the emphasis in argument both before the Tribunal and this Court upon the nature and extent of the proposed agricultural activities, the preservation of one third of the site for the purpose of natural systems was in itself not insubstantial nor insignificant. The school's case in this regard was supported by expert evidence that an area designated as "damp heathy woodland" is considered to be of high conservation significance due to its overall depleted status in terms of its distribution within both the Shire of Cardinia and the State of Victoria.

40 Accordingly, in my view the appellants must be regarded as having lost the case before the Tribunal on the facts and no error of law has been demonstrated. The appeal to this Court will be dismissed.

[1] The grounds of appeal for which leave was granted are as follows:

1. The Tribunal wrongly decided (at paragraph 21 of its reasons) that the use of the land (hereinafter referred to as "the subject land") as proposed by the Respondent in its permit application, made pursuant to the Cardinia Planning Scheme (hereinafter referred to as "the planning scheme") could or should be characterized as an education centre used in conjunction with agriculture or natural systems.

a. what activities would constitute each of the proposed uses;

b. how frequently such activities were intended to be carried on, and by whom;

c. where, on the subject land, it was intended to carry on such activities;

d. whether any and what buildings, construction, or works, would be required;

and in the result, failed to properly consider or decide whether any of the three proposed uses would be carried out sufficiently or at all, to be regarded as separate permitted uses under the planning scheme, and not mere ancillary uses included within the overall use proposed, of education centre.

7. The Tribunal failed to consider or decide whether, on the proper construction of the planning scheme, two of the proposed uses, namely agriculture and natural systems, were in fact, no more than uses which were ancillary to the proposed use for an education centre, and not, therefore uses which were in conjunction with an education centre.

It was accepted in argument that ground 6 effectively constituted particulars of grounds 1 and/or 6.

[2] The outcome in the schedule is; protection and conservation of the environmental values and landscape qualities of the land, including habitats of botanical and zoological significance, and the conservation of natural resources, including native vegetation, waterways and soils.

(a) Propagate, cultivate or harvest plants, including cereals, flowers fruit, seeds, trees, turf and vegetables;

(b) Keep, breed, board or train animals, including livestock and birds; or ...

Natural Systems Land in substantially its natural state which is used to maintain ecological systems, or to preserve an area of historic, scientific, aesthetic or cultural significance.

[4] Clause 71 of the planning scheme states:

"A term used in this planning scheme has its ordinary meaning unless that term is defined:

In the Planning and Environment Act 1987 or the Interpretation of Legislation Act 1984, in which case the term has the meaning given to it in those Acts unless it is defined differently in this scheme."

[5] Sweeeney Pastoral Company v Snowy River Shire Council [1993] NSWLEC 189; Parsons & Anor v Hornsby Council [1995] LEC 69; Loccisano v Hornsby Shire Council [1996] NSWLEC 12; Winten Property Group v Campbelltown City Council [1999] NSWLEC 241; Cannizzaro v Wyndham City Council [2004] VCAT 244; Gibson v Mornington Peninsula Shire Council [2004] VCAT 1457; Gillies v Mornington Peninsula Shire Council [2004] VCAT 2218

[6] Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1; Whitehorse City Council v Golden Ridge Investments Pty Ltd & Ors [2005] VSCA 198

[7] [1964] HCA 37; (1963) 110 CLR 529 at 535

[8] (1980) 57 LGRA 284, 289-90

[9] at 535

[10] at 288

[11] Davey v Brightlite Nominees Pty Ltd [1984] VicRp 76; [1984] VR 957 at 966; Food Barn Pty Ltd & Ors v Solicitor General (1975) 32 LGRA 157 at 161

[12] Parsons & Anor v Hornsby Council [1995] LEC 69; Loccisano v Hornsby Shire Council [1996] NSWLEC 12 was concerned with a control in similar but not identical terms.

[13] [1999] NSWLEC 241

[14] at [28]

[15] at [22]

[16] cf City of Springvale v Heda Nominees Pty Ltd [1982] 57 LGRA 298 at 313-314