HARVIS CAPITAL PTY LTD -v- MID-WEST/WHEATBELT JOINT DEVELOPMENT ASSESSMENT PANEL [2020] WASC 205 (11 June 2020)

1. The application was not contested: the JDAP and the second and third named other parties filed notices of intention to abide the decision of the court; the first named other party, White Toro Ltd,[1] did not enter an appearance.
2. Harvis Capital filed the following evidence:

(1) two affidavits of Alexander McGlue, a solicitor employed by the solicitors for Harvis Capital, sworn 14 February 2020 and 24 March 2020; and

(2) an affidavit of Kelvin Edward Flynn, a director of Harvis Capital, sworn 24 March 2020.

1. Although the JDAP abides the decision of the court, the State Solicitor, assisted the court by producing relevant documents from the files of the JDAP, which are maintained by the Department of Planning, Lands and Heritage. Those documents were put in evidence in an affidavit of Ian Alexander Repper, solicitor, affirmed 31 January 2020.
2. In effect, the evidence before the court consists of:

(1) the Shire of Chittering District Planning Scheme No 6 text and Scheme Zoning Map;

(2) the Shire of Chittering Local Planning Strategy;

(3) the Muchea Employment Node Local Structure Plan No 1;

(6) the agenda and minutes of the meetings of the JDAP when the application was considered, including the minutes recording the decision on the application;

(8) evidence advanced on behalf of Harvis Capital to support their standing as a party interested in the outcome of the application for development approval.

1. Harvis Capital dealt with 'standing' for the relief it seeks as a preliminary point.
2. Harvis Capital is the registered proprietor of land in the Scheme area (Lot 809). Lot 809 has approximately 105 ha of land capable of development into industrial lots. Lot 809 forms part of an area known as the Muchea Industrial Park. The land was identified for 'proposed industrial development' in the Western Australian Planning Commission 'Muchea Employment Node Structure Plan (2011)'. In 2015 it was rezoned from 'Agricultural Resource' to 'Industrial Development'.
3. Harvis Capital has incurred costs in making Lot 809 suitable for industrial subdivision and development. It believes its commercial interests in carrying out industrial subdivision and development will be undermined if development approval is granted for industrial land uses outside the recognised industrial areas. In part, its concern is that the development approval for the subject land will set a precedent that will encourage other prospective proponents to apply for development on less expensive Agricultural Resource land, and make it more difficult to attract buyers to lots in the industrial estate.
4. Harvis Capital cannot point to any direct effect on its legal or economic interests from the approval of the particular development. There is no evidence that the proposed feed mill would have been, or would likely have been, sited in the Muchea Industrial Park had it not been on the subject land. Nor can Harvis Capital demonstrate that the decision is likely to have effect as a precedent. Any economic impact resulting from the precedent value of the decision is no more than speculative.
5. Were it necessary for Harvis Capital to show some adverse effect on its interests for it to be eligible to apply for certiorari, I would dismiss the application.
6. The test for standing for the remedy of certiorari is, however, more liberal, if difficult to define.[2] Following a review of the authorities in Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs, Pritchard J concluded that an applicant for a writ of certiorari does not need to establish standing to bring the application for the writ.[3] The remedy is discretionary, and the fact that the applicant for the writ is a 'stranger' to the decision will be relevant to the exercise of the court's discretion whether to issue the writ. With respect, I accept her Honour's reasoning.
7. It is, accordingly, necessary to consider the merits of the application and consider the exercise of the discretion in light of the findings on the merits.

1. The application for development approval was made by Beca Pty Ltd, on behalf of Ingham's Enterprises Pty Ltd, and dated 17 April 2019. Pursuant to s 171A(2)(a) of the Planning and Development Act and reg 5 of the Planning and Development (Development Assessment Panels) Regulations, the application was required to be determined by a Development Assessment Panel.
2. The application (and the report of the Shire of Chittering, as the Responsible Authority) described the proposed development as a 'feed mill'.[4] In contrast, in challenging the development approval, senior counsel for Harvis Capital consistently referred to the proposed development as a 'factory'. I will refer to it as a feed mill, because that term is used in the documents that were before the JDAP. Whether the proposed use is 'Industry ‑ Rural' requires the court to consider the detail of the application, not the name used.
3. There are two main sources of that detail. First, the application was accompanied by development plans; reports on noise impact assessment, odour and dust impact assessment, and traffic impact assessment; a stormwater management plan; a geotechnical investigation; a bushfire management plan; a flora and vegetation survey; and a Planning Report.[5] Second, the Shire, as the Responsible Authority, was required to provide a report to the JDAP on the application.[6]

1. Lot 1809 is zoned 'Agricultural Resource' and within a special control area for 'military considerations' and 'water prone area'. The surrounding land is similarly zoned, with the exception of a lot on the opposite side of Brand Highway which has additional use rights for mineral sands processing. [7]
2. Lot 1809 has an area of just over 64 ha. It is relatively flat grazing land and contains areas of remnant vegetation which the proposed development does not encroach upon. The evidence does not show whether any stock are currently on the land. The lot is dominated by Multiple Use Wetland which is part of the Ellen Brook Floodplain. To the west, on adjoining properties, lie Conservation Category Wetlands.[8]

The development, processing and manufacture of pellets

1. Physical elements of the development, as summarised in the Responsible Authority Report, were:
   • A proposed monogastric animal feed mill with a total building area of 3,980m²;
   • A total development area of 36,743m² including the feed mill, hardstand areas, stormwater pond, waste water evaporation basin, landscaped areas and internal access roads;
   • Feed mill building to a height of 44m and clad in non-reflective 'Colorbond' material;
   • Weighbridge and truck wash down facility;
   • Operation 24 hours a day, 7 days a week;
   • The development will receive grain and meal for storage and processing, milled into pellets (animal feed) and dispatched to Inghams' customers; and
   • Receival and dispatch of materials and products is via trucks up to 36.5 m in length (A-double) with access to the site from Bore Road.[9]
2. The proposed development also included six large silos, with a further four 'indicative future silos', which would form part of a future application when necessary.[10]
3. The processing and pellet manufacture were described in the Planning Report in this way:

3.2.2 Delivery of Raw Materials from Storage to Process.

Grain will leave the silos as required and delivered to the roller/hammer mill and then on to the mixer. The system will also have the ability to send whole-grain directly to the Batch Mixers and the Liquid Coating Mixers.

Meal will be delivered direct via a bypass to the mixer. Soya meal and Millrun are to be directed to the roller/hammer mills and then on to the mixer, buffer capacity will be installed between the silo and the mixer to accommodate variations of consistency in incoming meal and provide a constant flow of materials to the mixer.

Other ingredients including micro ingredients and liquids will be added to the mixer as required in appropriate quantities ...

Grain and meal are milled according to Inghams specifications. Milling equipment will be located in an acoustic room rated so that the noise levels outside the room do not exceed 85 dBa. It is proposed to install two streams of micro dosing, mixing, pelleting, and cooling, with each stream capable of processing 30 tonnes per hour, including time taken to empty and fill the mixers. Ingredients are mixed to recipes into mash.

The mash is then delivered from the mash storage to the conditioner and then to the pellet press. The pellet press shall manufacture pellets ranging from 3.5-8.0 millimetres in diameter. Following pelleting the pellets shall be air cooled to a temperature ten (10) degrees above ambient temperature ...

After leaving the cooler, pellets will pass through or bypass the crumbler. The crumbler will reduce the size of the pellets. It is possible to adjust the crumbler so that the extent of size reduction is variable. Pelleted or crumbled product will be sieved and then sent to the liquid coating mixer... Pellets are sampled after the liquid coated mixer and tested for pellet durability and externally analysed for fat percentage, moisture and protein levels.[11]

1. On 8 August 2019, in response to a request for further information about the raw material for the feed mill, the Shire advised that the applicant had provided a list of raw materials that would be used at the facility: 80% being whole grains sourced in Western Australia (wheat, barley, oats, lupin, and canola seed); 20% made up of soyameal, canolameal, meatmeal, millrun, and bloodmeal (all being milled by‑products, with all but the soyameal processed in Western Australia); and the balance of input products being vitamins and minerals 'which arrive in pre‑mixes to be added in small quantities to each ration'.[12] Although the quantity is not specified, it may be inferred it is small given the percentages assigned to the whole grains and meal.
2. The proposed feed mill is expected to generate approximately 60 ‑ 70 truck movements (in and out) per day with the majority of vehicle movements between 7.00 am and 10.00 pm.[13]

1. Consultation was undertaken with government agencies. The Department of Primary Industries and Regional Development highlighted some constraints of the site, including a potential waterlogged soil profile and high groundwater table, but did not object to the proposal.[14]
2. The Department of Water and Environmental Regulation addressed matters relating to water resource management and environmental regulation. Relevantly, on a design capacity of 300,000 tonnes a year,[15] the proposed development was identified as a prescribed premises (Animal Feed Premises) under the Environmental Protection Act 1986, requiring works approval from the Department.[16]
3. None of the other government agency responses is relevant to the current proceedings.
4. The Shire recommended approval. The section in the Responsible Authority Report on the objectives of the zone is short. After setting out the objectives from the Local Planning Scheme, it continued:

The development of a feed mill is considered appropriate in the 'Agricultural Resource' zone as it generally does not conflict with the above objectives and promotes further intensive agricultural operations through its operations producing animal feed. The development is designed as such to enable the balance of Lot 1809 to continue to be used for agricultural purposes and contain any impacts of the operation to the nominated development footprint, avoiding unnecessary despoliation and land degradation.[17]

1. In response to presentations against the recommended approval, officers of the Shire provided additional information and recommendations including:

(1) the truck wash, weighbridge, meeting rooms, offices, and staff amenities were assessed as 'incidental activities' to the predominant 'Industry-Rural' land use, and 'not of a scale or nature that would warrant them being classified as land uses in their own right';

(2) the proposed grain silos were also considered to be an integral component to the receipt and processing of rural products, similar to grain silos on agricultural land;[18]

(3) the proposed feed mill was considered to be a 'compatible productive land use' within cl 1.6(a) of the objectives for the Agricultural Resource zone;

(4) it was unnecessary to have recourse to the Local Planning Strategy as there was sufficient guidance within the Scheme, but if regard was had to the Strategy there was sufficient justification for the proposed development.[19]

1. In responsive comments, the Shire also stated, in a passage that founds part of the applicant's submission on ground 3:[20]

The applicant's legal representative and CLE have suggested that the proposal does not meet the objectives of the 'Agricultural Resource' zone of the Local Planning Scheme. The legal advice states 'Any view to the contrary would be misguided in that it would necessarily overlook the proposed development's failure to preserve land for grazing, cropping or intensive horticulture ...

To clarify, the Local Planning Scheme objective a) for the 'Agricultural Resource' zone states:

1. preserve productive land suitable for grazing, cropping and intensive horticulture and other compatible productive land uses in a sustainable manner;[21]

The reference to 'other compatible productive land uses' is omitted from the submissions. This element of the objective is considered to capture the proposed feed mill in that it works in correlation with the agricultural sector to receive and produce goods used in the agricultural industry. It is therefore considered to be a compatible land use.

1. Decisions of a Development Assessment Panel are decided by a majority of votes of the members present.[22] Minutes of a JDAP meeting must be kept, and for each determination of a development application the minutes must include a record of the determination, and reasons for the determination.[23]
2. The minutes of the meeting of 9 August 2019 record:

(1) Amendments to the Report Recommendation in the Responsible Authority Report, adding five new conditions;

(2) The Report Recommendation to approve the application (as amended) subject to 17 conditions;

(3) That the Report Recommendation was put and carried: 'Reason: In accordance with details contained in the Responsible Authority Report and Amending Motion'. [24]

1. Planning decisions are made in the context of a legislative framework, governed by the Planning and Development Act and regulations made under it, and the district planning scheme. The relevant scheme, the Shire of Chittering District Planning Scheme No 6, must be read with the deemed provisions found in sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA). The regulations also contain, in sch 1, model provisions. Those provisions were not in force at the time the Scheme was adopted.
2. Harvis Capital also relies on the provisions of the Local Planning Strategy, which had been prepared but not endorsed when the application was considered and approved.
3. Part 3 of the Planning and Development Act provides for the preparation of State planning policies, which are 'to be directed primarily towards broad general planning and facilitating the coordination of planning throughout the State by local governments'.[25] By s 77A, the Minister may order a local government to prepare an amendment to a local planning scheme for the purpose of rendering it consistent with a specified State planning policy. A local government must have due regard to any state planning policy which affects its district when it prepares or amends a local planning scheme.[26] The regulations do not directly require that State planning policies be considered in deciding a development application. State Planning Policy 2.5 - Rural Planning - was, however, referred to as a relevant policy in the Responsible Authority Report.[27]
4. Finally, there were three local policies referred to in the Responsible Authority Report, none of which is relevant to the issues in this action.

1. State Planning Policy 2.5 is to be applied to State and local government planning decision-making for development proposals on rural zoned land.[28]
2. The objectives of the policy include to support existing, expanded and future primary production through the protection of rural land, particularly prioritising agricultural land and land required for animal premises and/or the production of food.[29]
3. Rural land uses are defined as uses that are 'rural in nature' and that support and are associated with primary production, basic raw material extraction, biodiversity conservation, natural resource management, public purposes (eg prisons, cemeteries, public utilities and waste management facilities) and protection of landscapes and views.

The Shire of Chittering District Planning Scheme No 6

1. The Scheme came into effect in 2004. The Scheme text is to be read in conjunction with the Local Planning Strategy.[30]
2. The purposes of the Scheme, set out in cl 1.5, include:

(a) Set out the local government's aims and intentions for the Scheme Area;

...

(c) Zone land within the Scheme Area for the purposes defined in the Scheme; and

(d) Control and guide land use and development;

(a) To provide environmental protection and enhancement of biodiversity and the natural resources including land, air and water quality;

(b) To protect good quality agricultural soils suitable for sustainable farming and horticulture from inappropriate subdivision and development for non-agricultural purposes;

(c) To ensure all developments comply with the principles of catchment management;

(d) To maintain the rural lifestyle as part of the community structure and well-being;

(e) To provide for, but contain, settlement growth in designated areas of a local village character as service centres for the local population and tourists;

(f) To provide for rural residential development in controlled settlement areas;

(g) To protect and improve areas of remnant vegetation and, waterways from further degradation;

(h) To facilitate vegetated wildlife corridors and greenways, particularly along the primary water courses throughout the Shire by means of reserves and partnerships with government agencies and private landholders;

(i) To protect the landscape values of any designated landscape precinct/area/zone;

(j) To identify and protect basic raw materials resources for extraction and set standards for management and rehabilitation;

(k) To promote employment opportunities by setting aside land for light and service industry development;

(l) To provide for a coherent and efficient road system throughout the Shire;

(m) To provide a cohesive framework on which to manage the development of the Shire;

(n) To co-operate with community groups and to assist in sustainable enterprises for the benefit of the agricultural industry and the community as a whole.

(o) To provide for essential infrastructure consistent with and as needed to support the other aims of the Scheme.

1. The Scheme Area is classified into 10 zones, including a Light Industrial zone, a General Industrial zone, an Industrial Development zone, and an Agricultural Resource zone.[31]
2. Part 3 of the Scheme provides for the objectives of the various zones. The objectives of the Agricultural Resource zone are to:

1. preserve productive land suitable for grazing, cropping and intensive horticulture and other compatible productive rural uses in a sustainable manner; 2. protect the landform and landscape values of the district against despoliation and land degradation;

1. encourage intensive agriculture and associated tourist facilities, where appropriate;

1. allow for the extraction of basic raw materials where it is environmentally and socially acceptable.[32]
2. The objectives of the Industrial Development zone include to:
   1. designate strategic land areas for future industrial development and employment creation purposes, and prevent such land from being used or developed in a manner which could prejudice its use for this purpose;
   2. ensure orderly and comprehensive planning and co-ordinated subdivision and development through the requirement for the preparation and endorsement of a structure plan in accordance with Part 4 of the deemed provisions and any associated provisions contained in Schedule 10 of the Scheme.[33]
3. The Scheme zoning table sets out the permissibility of 86 specified uses in the 10 zones.[34] A use may be: permitted providing the use complies with the relevant development standards and the requirements of the Scheme; not permitted unless the local government has exercised its discretion by granting development approval; not permitted unless the local government has exercised its discretion by granting development approval after giving special notice; or not permitted.[35]
4. 'Industry-Rural' is not a permitted use in the Agricultural Resource zone unless the local government has exercised its discretion by granting development approval. 'Industry' and 'Industry-Light' are not permitted uses in that zone.[36]
5. Land use definitions are found in sch 1 to the Scheme text. Relevantly:

Industry - Rural means ‑

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

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

1. The term 'rural products' is not defined. It is used in the planning schemes of other rural shires, and has been considered in the State Administrative Tribunal but not in this court.
2. 'Industry' and 'Industry-Light' are also defined:

Industry means premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes facilities on the premises for any of the following purposes ‑

(a) the storage of goods;

(b) the work of administration or accounting;

(c) the selling of goods by wholesale or retail;

(d) the provision of amenities for employees;

(e) incidental purposes.

Industry - Light means an industry:

(a) in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises, do not cause any injury to or adversely affect the amenity of the locality and does not emit pollutants into the air or water;

(b) the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services;

1. In interpreting the zoning table, where a specific use is mentioned, it is deemed to be excluded from the general terms used to describe any other use.[37] In the present case, a use properly categorised as 'Industry‑Rural' (the specific use) is excluded from the general terms used to describe 'Industry', even though, for example, it involves processing of products.

Planning and Development (Local Planning Schemes) Regulations

1. Regulation 8 of the Planning and Development (Local Planning Schemes) Regulations sets out documents that comprise a local planning scheme, including any of the provisions set out in sch 2 (the deemed provisions) which are not incorporated into the local planning scheme text.[38]
2. The deemed provisions regulate development approval, including how to apply, what documents must accompany a development application, advertising of applications, and consultation by the local government with other authorities.[39]
3. Schedule 2 also provides for local planning strategies and policies. I deal separately below with the Local Planning Strategy.
4. Clause 67 sets out matters to which the local government is to have due regard, 'to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application'. The factors (excluding only those which are clearly inapplicable) are:

(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;

(c) any approved State planning policy;

(d) any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d);

(e) any policy of the Commission;

(f) any policy of the State;

(g) any local planning policy for the Scheme area;

(h) any structure plan, activity centre plan or local development plan that relates to the development;

...

(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;

(n) the amenity of the locality including the following ‑

(i) environmental impacts of the development;

(ii) the character of the locality;

(iii) social impacts of the development;

(o) the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;

(p) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;

(q) the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;

(r) the suitability of the land for the development taking into account the possible risk to human health or safety;

(s) the adequacy of ‑

(i) the proposed means of access to and egress from the site; and

(ii) arrangements for the loading, unloading, manoeuvring and parking of vehicles;

(t) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;

...

(v) the potential loss of any community service or benefit resulting from the development other than potential loss that may result from economic competition between new and existing businesses;

(w) the history of the site where the development is to be located;

(x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;

(y) any submissions received on the application;

(za) the comments or submissions received from any authority consulted under clause 66;

(zb) any other planning consideration the local government considers appropriate.

1. Decisions on a development application may be reviewed in the State Administrative Tribunal, but only the applicant for development approval or the owner of the land in respect of which the application was made can apply for a review.[40]

1. Pursuant to s 257A of the Planning and Development Act a local planning scheme prepared or adopted by a local government must include any model provisions that are prescribed by regulations in force at the time the scheme is approved and that apply to the scheme.
2. Schedule 1 of the Planning and Development (Local Planning Schemes) Regulations sets out the model provisions for local planning schemes. I discuss these provisions in more detail below.

1. A local government must prepare a local planning strategy, in accordance with pt 3 of the Planning and Development (Local Planning Schemes) Regulations, for each local planning scheme that is approved.[41] By reg 11(2):

A local planning strategy must ‑

(a) set out the long-term planning directions for the local government; and

(b) apply any State or regional planning policy that is relevant to the strategy; and

(c) provide the rationale for any zoning or classification of land under the local planning scheme.

1. Regulations 15 and 16 provide for endorsement and publication of a local planning strategy by the Planning Commission.
2. The Shire of Chittering Local Planning Strategy was endorsed by the Western Australian Planning Commission on 10 October 2019, after the decision approving the development on the subject land.[42] The Planning Commission had, on 26 July 2019, provided the Shire with its final required modifications to the Strategy.[43]
3. In addressing the relevant legislative framework, the development application planning report referred to the Shire of Chittering Draft Local Planning Strategy 2018, which it described as 'currently being reviewed by Council'.[44]
4. Relevantly, the Strategy proposes to 'normalise' the Agricultural Resource zone 'to reflect the model "Rural" zone provisions in the Planning and Development (Local Planning Schemes) Regulations'.[45] The model provisions provide the following objectives for a Rural zone:
   • To provide for the maintenance or enhancement of specific local rural character.
   • To protect broad acre agricultural activities such as cropping and grazing and intensive uses such as horticulture as primary uses, with other rural pursuits and rural industries as secondary uses in circumstances where they demonstrate compatibility with the primary use.
   • To maintain and enhance the environmental qualities of the landscape, vegetation, soils and water bodies, to protect sensitive areas especially the natural valley and watercourse systems from damage.
   • To provide for the operation and development of existing, future and potential rural land uses by limiting the introduction of sensitive land uses in the Rural zone.
   • To provide for a range of non-rural land uses where they have demonstrated benefit and are compatible with surrounding rural uses.[46]
5. The Strategy provides for the objective of promoting the sustainable use of rural land 'for a range of compatible uses' and to ensure rural land continues to cater for primary production. Specified actions include removing industrial uses which are not compatible with primary production out of the Agricultural Resource zone.[47]
6. Discussing the Shire's economy, the Strategy states the objective of 'diversification of land uses within the rural zone', with future development to be complementary to the agricultural intent and natural character of the Rural zone.[48] The proposed actions include supporting agribusiness uses within the Agricultural Resource and Rural Smallholdings zones.[49]
7. In support of the objective of preserving rural zoned land for rural and compatible non-rural land uses, the Strategy proposes to provide for 'limited industrial uses' in the Agricultural Resource zone 'where they are wholly related to primary production, or solely reliant on multimodal transport connections'.[50]
8. Part 3.4.2 of the Strategy states the objective of limiting ad hoc industrial locations throughout the Shire, with the Muchea Industrial Park the focus for industrial development. The objective of directing all future industrial development to the Muchea Industrial Park is repeated in pt 3.5.5.
9. The Strategy does not specifically seek to reflect the model provisions in relation to industry zones but is, generally, required to incorporate those provisions by default.[51]
10. The Scheme includes a zone class of 'Industry‑Rural'. The model provisions, incorporated into the Strategy, do not include an 'Industry‑Rural' zone or class. The model provisions do include an 'Industry‑Primary Production' use defined by reference to a 'primary production business' in the Income Tax Assessment Act 1995 (Cth). That definition is more limited in scope than the 'Industry‑Rural' use under the Scheme. It specifically does not include 'handling, treating, processing or packing rural products',[52] except to the extent that those activities would be an 'incidental use ... consequent on, or naturally attaching, appertaining or relating to, the predominant use'.[53]
11. In summary, the Strategy, read with the model provisions, would result in any local planning scheme prepared after their adoption differing from the Scheme. The zoning or classification of land in some areas may be different, and use classes would be differently defined by reference to the model provisions.
12. The proposed development is not compatible with the Strategy and the model provisions. The Strategy did not, however, directly affect the Scheme, or the zones or land use classes, under which the decision was made.

1. The critical issue, raised in ground 1, is whether the application was for an 'Industry ‑ Rural' land use. The question does not depend on the opinion or state of satisfaction of the decision maker, but is an objective question. If the application was for a land use that was either 'Industry' or 'Industry Light', the JDAP did not have power to approve the application.
2. In support of ground 1, Harvis Capital referred to three decisions of the State Administrative Tribunal where other planning schemes with a similarly defined 'Industry-Rural' land use were considered: Attwell and City of Albany (2009) 61 SR (WA) 25; Ecogrowth International Pty Ltd and City of Swan [2012] WASAT 109; and Castle and City of Rockingham [2018] WASAT 98.
3. Harvis Capital focused on the words 'rural product' and whether the proposed feed mill was properly described as 'processing rural products'.
4. From the Tribunal decisions, Harvis Capital submitted a series of what it described as 'unexceptionable points'. It submitted that something that is used in both country and urban areas is not a 'rural product'. It further submitted that, for the proposed use to be 'Industry ‑ Rural', inputs to the feed mill must be, or substantially be, 'rural products'. That is, the inputs must be something that is characteristic of the country or related to agriculture, and something produced by nature or by a natural process. Harvis Capital submitted that a product that may be used for purposes unrelated to agriculture will not be a 'rural product'.
5. The submission that the inputs must be 'produced by nature or by a natural process' appears to pick up the Tribunal's reference to the definition of 'product' in the Macquarie Dictionary as:

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.[54]

1. The focus on the definition of 'rural product' is not the proper approach to construction. In Mersey Docks and Harbour Board v Henderson Brothers, Lord Halsbury said:

It certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed.[55]

1. In Collector of Customs v Agfa-Gevaert Ltd the Court said:

The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown,[56] a recent House of Lords decision, Lord Hoffman said:

'The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.'[57]

1. In Australian Unity Property Limited v City of Busselton,[58] the Court of Appeal considered the principles of interpretation and their application to the proper construction of a planning scheme. The court stated the following principles:

The first aspect is the imperative to give primacy to the language which the legislating body has chosen to use ...

The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose ... In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read ...

These considerations are no less important when the legislative instrument being construed is a planning scheme. The terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.

That is not to say that the statutory text is to be read divorced from its context and purpose. Context and purpose may affect the meaning of the language that Parliament has chosen to use. When the text is considered in its context, and having regard to the statutory purpose, it may be apparent that words are used with other than their ordinary meaning.

...

The task of construction is not to make a fortress out of the dictionary. However, the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.

...

In construing a planning scheme, it is also relevant to note that schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach. But the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.

1. Applying those principles, the proper approach is to consider the phrase 'an industry handling, treating, processing or packing rural products' and determine its meaning by reference to the statutory context and purpose. That context includes the aims of the Scheme, as stated in cl 1.6; the objects of the Agriculture Resource zone; and the wider legislative context, set out earlier, which informs consideration of orderly and proper planning.
2. First, the 'Industry-Rural' use is a land use in an Agricultural Resource zone, the objectives of which include to preserve productive land suitable for grazing, cropping and intensive horticulture and other compatible productive rural uses in a sustainable manner. The requirement that the use be 'compatible' may be a reference back to 'grazing, cropping and intensive horticulture', or more generally to 'productive rural uses'.
3. Second, there is a wide range of permissible uses in the Agricultural Resource zone, not all of which preserve the land for grazing, cropping, horticulture or other compatible productive purposes. It cannot have been intended that the land actually used for a rural industry (or many of the other uses permissible in the zone, such as an airfield, cemetery, or commercial vehicle parking) could continue to be used for productive purposes.
4. Third, the definition of 'Industry‑Rural' does not refer to the source of the 'rural products': that is, it is not confined to treating or processing things produced on the subject land or even within the district. Nor does it refer to the scale of the industry carried on, although some limitation may be implied from the objectives of the Agricultural Rural zone, including the protection of landform and landscape values of the district.
5. Fourth, the definition of 'Industry-Rural' would not be confined to handling, treating, processing or packing the raw grains, and exclude the materials which were described as 'meals'. A meal is defined as, 'the edible part of any grain (now usually excluding wheat) or pulse ground to a coarse powder and not sifted'.[59] The evidence was that the meals were mill by-products. There is a point at which something has been processed into 'manufactured or processed goods', but the evidence does not suggest that is a correct description of meals.
6. Fifth, 'Industry‑Rural' is used in distinction to 'Industry', that is, 'premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances'. The definitions include the terms ‑ manufacture, processing and treating ‑ the meanings of which overlap. In particular, the dictionary definitions of processing include: 'to treat or prepare by some particular process, as in manufacturing', and 'to convert (an agricultural commodity) into marketable form by some special process'.[60]
7. The composite phrase, 'an industry handling, treating, processing or packing rural products' refers to processes which occur in, or may be part of, manufacture. But processing and manufacture are not synonymous. The fact that different products are combined and treated would not necessarily exclude the feed mill operation from being described as treating and processing rural products. But the whole operation described in the application ‑ milling, mixing to mash, manufacture into pellets, crumbling and coating ‑ is more than treating and processing the grains and meals. It is the manufacture of a separate product.
8. It follows that the application for development was not a use that could be approved in the Agriculture Resource zone, as it was not within the use class 'Industry‑Rural' properly construed.
9. My conclusion on ground 1 makes it unnecessary to decide grounds 2 and 3.
10. The application should be allowed. The applicant should bring in a minute of orders to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] See, for example, Re Western Australian Planning Commission; Ex Parte Leeuwin Conservation Group Inc [2002] WASCA 150 [44]; Re Smith; Ex parte Rundle (1991) 5 WAR 295, 305 ‑ 307.

[3] Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 [56] ‑ [67]. See also S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 19.

[4] Affidavit of Ian Repper dated 31 January 2020 IAR 1, IAR 12; affidavit of Alexander McGlue sworn 14 February 2020 AMG 14, 146.

[5] See Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2 cl 63, which specifies the material required to accompany a development application.

[6] Planning and Development (Development Assessment Panels) Regulations reg 12.

[7] Affidavit of Alexander McGlue sworn 14 February 2020 AMG 14, 152 ‑ 153.

[8] Affidavit of Alexander McGlue sworn 14 February 2020 AMG 14, 149, 152 - 153.

[9] Affidavit of Andrew McGlue sworn 14 February 2020 AMG 14, 149. See also the Planning Report submitted by BECA at affidavit of Ian Repper dated 31 January 2020 IAR 12, 410 and following.

[10] Affidavit of Ian Repper dated 31 January 2020 IAR 12, 410.

[11] Affidavit of Ian Repper dated 31 January 2020 IAR 12, 412.

[12] Affidavit of Ian Repper dated 31 January 2020 IAR 15, 440.

[13] Affidavit of Ian Repper dated 31 January 2020 IAR 12, 418.

[14] Affidavit of Alexander McGlue sworn 14 February 2020 AMG 15, 154.

[15] Affidavit of Ian Repper dated 31 January 2020 IAR 12, 406.

[16] Affidavit of Alexander McGlue sworn 14 February 2020 AMG 15, 156 ‑ 159.

[17] Affidavit of Alexander McGlue sworn 14 February 2020 AMG 14, 161.

[18] The Shire did not comment on the number of silos - initially six, with four 'indicative future silos'.

[19] Affidavit of Ian Repper dated 31 January 2020 IAR 13, 435 ‑ 438.

[20] Affidavit of Ian Repper dated 31 January IAR 13, 436.

[22] Planning and Development (Development Assessment Panels) Regulations reg 42.

[23] Planning and Development (Development Assessment Panels) Regulations reg 44(1A).

[24] Affidavit of Alexander McGlue sworn 14 February 2020 AMG 15. The amending motion is at 195.

[25] Planning and Development Act s 26(2).

[26] Planning and Development Act s 77.

[27] Affidavit of Alexander McGlue sworn 14 February 2020 AMG 15, 153, 174.

[31] The Scheme pt 3.2.

[33] The reference to deemed provisions is to those provisions deemed to be part of each local planning scheme by s 257B of the Planning and Development Act, and reg 10 and sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015.

[38] See also Planning and Development Act s 256, 257B.

[39] Planning and Development (Local Planning Schemes) Regulations sch 2 cl 60 ‑ 66.

[40] Planning and Development (Local Planning Schemes) Regulations sch 2 cl 76.

[41] Planning and Development (Local Planning Schemes) Regulations reg 11.

[42] Affidavit of Alexander McGlue sworn 14 February 2020 AMG 19 (the Strategy).

[43] Affidavit of Alexander sworn 24 March 2020 AMG 24.

[44] Affidavit of Ian Repper dated 31 January 2020 IAR 12, 422.

[46] Planning and Development (Local Planning Schemes) Regulations sch 1 cl 16.

[47] The Strategy pt 3.3.4, 332 ‑ 333.

[48] The Strategy pt 3.4.1, 336.

[49] The Strategy pt 3.4.1, 336.

[51] Planning and Development Act s 257A.

[53] By Planning and Development (Local Planning Schemes) Regulations sch 1 cl 18 a use of a particular zone can be permitted if it is consequent on, or naturally attaching, appertaining or relating to the predominant use of the land.

[54] Atwell and City of Albany [26]; Ecogrowth International Pty Ltd and City of Swan [22]; Castle and City of Rockingham [26].

[55] Mersey Docks and Harbour Board v Henderson Brothers (1888) 13 App Cas 595, 599 - 600.

[56] R v Brown [1996] 1 AC 543, 561.

[57] Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 396 ‑ 397.

[58] Australian Unity Property Limited v City of Busselton [2018] WASCA 38 [79] ‑ [84]. (citations omitted)

[59] Macquarie Dictionary online. In this case, meals were not confined to grain but included meat meals.