Chiefari v Brisbane City Council [2005] QPEC 9 [2005] QPELR 500

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Chiefari v Brisbane City Council [2005] QPEC 009 PARTIES: TONY CHIEFARI Appellant v BRISBANE CITY COUNCIL Respondent FILE NO/S: BD 2056 of 2003 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court of Queensland, Brisbane DELIVERED ON: 24 February 2005 DELIVERED AT: Brisbane HEARING DATE: 1 and 2 February 2005; written submissions received from Counsel for the parties on 7 and 9 February 2005 JUDGE: Alan Wilson SC, DCJ ORDER: Appeal dismissed CATCHWORDS: PLANNING – CONSTRUCTION OF PLANNING SCHEMES – meaning of “farm” in Brisbane City Plan 2000 Brisbane City Plan 2000 Integrated Planning Act 1997 Cases considered: Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88 Bhat v Brisbane City Council [2003] QPELR 115 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Hope v Bathurst City Council (1980) 144 CLR 1 Livingstone Shire Council v Brian Hooper and M3 Architects [2004] QPELR 308 Project Blue Sky v Australian Boardcasting Authority (1998) 194 CLR 355 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 15 NSWLR 541 R v Brown (1996) 1 AC 543 COUNSEL: Mr W L Cochrane for the appellant Mr M D Hinson SC for the respondent -- 1 of 7 -- 2 SOLICITORS: MacDonnells for the appellant Brisbane City Legal Practice for the respondent [1] This is an appeal against the respondent’s deemed refusal of the appellant’s application for a development permit for a material change of use for a Farm (not complying with the Farm Code), made under the respondent’s Planning Scheme, Brisbane City Plan 2000. The application related to a large, existing shed on the appellant’s land and its present use which primarily involves the collection, storage and distribution of produce from other local properties. The primary issue is whether that use falls within the definition of ‘farm’ in City Plan, or is properly characterised as warehouse, or industry usage under the definition of those things. [2] The shed is on land at 45 Van Dieren Road, Pallara, a semi-rural area south of Oxley. The parcel is rectangular, contains 1.62ha, and has a frontage of 80m to Van Dieren Road. It is flat, and over half is used for market gardening. The shed itself is 30.5m x 18.3m, 8.7m high, and contains 577m2 . One of the longer sides faces the road, from which the structure is set back only 12m. On the road frontage there is a large paved driveway and concrete forecourt, softened by landscaping along parts of the shed wall and in a semi-circular island on the road edge. On inspection it presented as a large, dominant structure in a semi-rural area close to a paved, but narrow bitumen road. There is also a dwelling house on the property, occupied by a tenant who works the market garden. [3] The Pallara area is located between Blunder Creek to the northwest and Oxley Creek to the northeast. The immediate district is subdivided into lots of between 1.5 and 2ha used, as inspection showed, for a variety of purposes. Some parcels present as traditional market gardens producing small crops but there are also plant nurseries and signs of equestrian based activities and, also, a number which appear to be used primarily for residential purposes but are occupied by persons who have transport businesses, and park one or more large trucks on their properties. Sheds of varying sizes are common but only one or two appeared to approach, or possibly exceed, the appellant’s in size. [4] Mr Chiefari is a director of Top Class Fruit Supplies Pty Ltd, a fruit and vegetable wholesaler operating from Flemington Markets in Sydney supplying retail chains like Coles, and Woolworths. The company purchased the land in September 2000 and erected the shed (which also contains cool rooms, and an office). It does not itself grow any produce on the land and the shed is, rather, used as a collection point for the packaging, storage and distribution of produce from about 40 growers, predominantly from the Vietnamese community, working similar small holdings in Pallara and surrounding areas. They bring their produce in small vehicles to the shed. Top Class has permanent employees working on the premises. After processing there, the produce is collected by a semi-trailer and transported south. [5] The land is within the Brisbane Green Space System in an area recognised as having rural, semi-rural/semi-natural and open landscape values. Under City Plan s 4.1.2.2 that System envisages ongoing rural and semi-rural activities, and a continuing contribution to the landscape values of the city. City Plan Chapter 3 divides the city into a number of different areas and indicates intentions and assessment requirements for each of them. It is not in dispute that this land and the surrounding locality are contained in the Rural Area, one of five pockets of Green Space. The -- 2 of 7 -- 3 Intent for these Areas acknowledges they contain “… privately owned land and accommodate residential and rural uses which are respected and preserved provided the DEOs are met”. [6] Under Tables which indicate the levels of assessment for the area, activities of the kind associated with warehouses and industry are categorised as impact assessable (generally inappropriate) development; but a farm is self-assessable development where it complies with the Acceptable Solutions in the Farm Code (or Code assessable development where it does not comply). The parties agree that the shed and its operations do not comply with four aspects of acceptable solution A1.1 of the Farm Code1. [7] The appellant’s original application for a development permit described the premises as “Farm (not complying with the Farm Code)”. In an accompanying Town Planning Report it was said that: It is proposed that the existing farm be extended to include the storage of produce resulting from horticulture carried out on other properties and the storage of packaging material and equipment. … A proposed development is assisting existing farming operations in the rural area by providing a central storage facility and collection point for farm produce. … The proposed use of premises continues the existing farm use on the subject property with the addition of produce from other farms in the area being stored in the existing shed. … The proposed farm will provide a cold storage facility for local produce produced in the area. This development is providing a cold room facility in a single location where produce grown on other properties can be collected at a single location for distribution to the markets. … This development application is seeking approval for produce grown on other properties to be stored on the subject site with the produce already grown on the site. [8] The parties agree the principal question for determination is whether the proposed use of the shed places it within the City Plan definitions of a farm, or a warehouse or an industry. The Planning Scheme defines these terms thus: Farm: a use of premises for commercial rural activities including: ƒ Growing crops, trees, fruit, vegetables, flowers and turf ƒ Cultivating seedlings, plants, ƒ Breeding, keeping and/or raising livestock or bees but specifically excluding: ƒ aquaculture* 1 Conclave statement of the Town Planners, reported Mr Vann Ex 9 Appendix D. -- 3 of 7 -- 4 ƒ display or sale activities ƒ a cattery ƒ a kennel ƒ a garden centre ƒ stables ƒ a riding school ƒ poultry farming of more than 20 birds ƒ goat farming of more than 5 goats ƒ pig farming of more than 5 pigs ƒ veterinary facilities ƒ cattle fee lotting* of any number of cattle ƒ soil conditioner manufacture* ƒ mushroom growing substrate manufacture* ƒ as defined in the Environmental Protection Act 1994. Industry: a use of premises that, in the course of any trade or business, involves: ƒ the manufacture, production, processing, repair, alteration, dry cleaning or laundering (not including Laundromats), recycling, storage or transfer of any article, material or thing whether solid, liquid or gaseous ƒ scientific or technological research, investigation or testing ƒ the disposal of waste This includes any ancillary office space for administration, staff amenities or storage of articles used in connection with or resulting from that activity. This includes all uses in Chapter 3, Industrial Areas – Schedule 1 and Schedule 2, whether or not they are ancillary to any other use. Warehouse: a use of premises for the storage of goods, whether or not in a building, including self-storage facilities or storage yards. [9] These definitions are included in City Plan to provide an explanation of the meaning of terms used in the Scheme. They are obviously of general application and intended to cover a variety of circumstances. They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.2 [10] That said, the words being defined are commonplace and it is obvious a careful attempt has been made in the definitions part of City Plan to circumscribe the meanings those common words are to have throughout it. Both parties accepted that, within the confined arena of a section of a planning scheme devoted to definitions of particular words and phrases, ordinary principles of statutory construction ought to apply. Statements in other cases in this jurisdiction suggesting a less precise or insistent method of construing planning schemes will apply where, as often happens, parties can point to different parts or passages within those schemes which might touch a particular proposal; but when, as here, reference is being made to a small but central part of the Scheme which ascribes meanings to the terms it uses, general principles of statutory construction should apply. [11] Here, the relevant principles will include the context of the provision being construed: Project Blue Sky v Australian Boardcasting Authority (1998) 194 CLR 355 (at 381); an acknowledgement that provisions are intended to give effect to 2 Bhat v Brisbane City Council [2003] QPELR 115 at [31]. -- 4 of 7 -- 5 harmonious goals, maintaining the unity of the Scheme while giving effect to the purpose and language of particular provisions; and, that the primary unit of communication is to be found in sentences, and not the individual words of which they are composed, so the significance of each word is affected by others and the syntax of the whole: R v Brown (1996) 1 AC 543 at 561, cited in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 (at 397). [12] In contending that the admitted use of the shed did not take it outside the ‘farm’ definition the appellant pointed, first, to the horticultural activity carried out on other parts of the subject land and the fact that the definition clearly contemplates pursuits of that very kind. That is so, but if (as the submission contemplates) the different activities on this parcel are to be considered discretely it can be said, with at least equal force, that as a matter of first impression the use of a shed on land to collect and store produce grown by others on separate land does not immediately conjure up the notion of a farm, or fall within the usual range of farming activities. Indeed, the use of a shed in that way fits more readily with the ordinary notion of a warehouse. [13] The definitions are concerned with activities regarded as entities: Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88 (at 94), and the activities undertaken by this appellant, considered separately or as a whole, relate to the collection and storage of produce grown off the premises and the distribution of that produce to its customers in the course of its business as a vegetable wholesaler. This does not sit comfortably with the plain meaning conveyed by the City Plan definition of ‘farm’, ie a use of premises for activities which include growing, cultivating or breeding; and, when the definition is read according to ordinary principles of statutory construction, there is no immediate basis for concluding it should extend to include uses outside those activities. [14] The appellant relied upon the use of the word “commercial” in the definition as a tacit acknowledgment, in City Plan, that some activity like that undertaken by the appellant, associated with farm production, would be acceptable. Support for this argument might be found, it was said, in part of the Farm Code (Acceptable Solution A1.1) which recognises the storing of produce resulting from horticulture as a farm activity, albeit with the restriction that it should be horticulture carried out on the property itself. Mr Higginson, the town planner called for the appellant, placed some weight upon this and the fact that storage of produce from a farm permits self-assessment so it is illogical, he contended, that the receipt and storage of produce from other properties should have such a dramatic effect as to make the next level of assessment, code assessment, inappropriate. [15] The difficulty for the appellant is that “farm activities”, the expression used in the Acceptable Solution, is plainly no more than a terse description of the activities referred to in the definition of “Farm”, ie horticulture or animal husbandry. “Commercial” simply means the horticultural activity is undertaken on a commercial basis, rather than as a recreation or hobby3. Since horticulture is required to be commercial, rural activity on a farm logically extends to and includes the storage of produce where that is incidental to and necessarily associated with the farm’s own commercial production. 3 Hope v Bathurst City Council (1980) 144 CLR 1, at 8-9, 10. -- 5 of 7 -- 6 [16] It follows that the storage of produce from horticulture on the land itself is readily characterised as incidental to or necessarily associated with growing crops, as a going concern with a view to profit. The words used in A1.1 simply recognise that, and the fact that where the storage is not limited to the farm’s own produce the activity is to be assessed more stringently under City Plan does not detract from the primary requirement that the storage must, nevertheless, be a part of the farm activity of horticulture. The phraseology does not go so far, or become so inclusive, as the appellant contends. [17] Inherent in the appellant’s submission is the notion that “rural activities”, as that phrase is used in the Scheme definition, logically and reasonably extends to include the importation, storing and processing of horticultural products not grown on the subject site. That activity is not, however, one of those described in the inclusory parts of the definition, and attempts to include it encounter the added difficulty that other types of activity, logically associated with farming, might slip in by the same door. If the submission is correct, the repair or servicing of equipment used in primary production, or any activity having some connection with primary produce (but which is not itself primary production) may argue for inclusion. [18] The construction which sits more comfortably with the Scheme definition is one which draws a line – the activity must include primary production in the sense of growing, cultivating or breeding etc. The appellant’s construction would require an additional parameter, not contemplated in the definition or clearly delineated, and only capable of being determined by reference to some unstated criteria. In this sense, the appellant’s contention founders on the rock of uncertainty. [19] Mr Hinson SC for the Council also pointed out that, without too far a stretch, the appellant’s approach can produce absurd (and therefore obviously unintended) consequences. Large markets which collect produce (eg Rocklea Markets) would fall within the definition. The simile is exaggerated, but does make a point: on no reasonable view can these sorts of activities fall comfortably within the existing definition which contains language conveying nothing more than rural activity possessing the attributes of being commercial, and including what is usually undertaken on farms. [20] The appellant also sought to rely on definitions of “rural industry” in other planning schemes4 some of which include (within their definition of that phrase) the handling, treating, processing or packing of primary products. Under City Plan (which does not include a definition of “rural industry”) activity of that sort fits more comfortably within the definition of “industry”, with its reference to activities that, in the course of a trade or business, involve the processing, storage or transfer of any article. It is apparent that the drafters of City Plan were astute to establish a distinction between the two. [21] This discussion also indicates that it is the definition of “warehouse” in City Plan which is actively engaged by the appellant’s activities in the shed. Under it, the dominant or definitive activity is storage, with no distinction as to the nature of the goods stored nor, in particular, any attempt to exclude primary produce. 4 See Ex 18. -- 6 of 7 -- 7 [22] The storage on a farm of produce grown on it would not constitute an activity within that definition but, rather, be part of the farm use5. It is the storage on one premises of produce grown on others which brings the former within the definition of ‘warehouse’. On its face, that characterisation does not alter because the premises also happens to be a farm on which commercial rural activity is carried out, nor because produce grown on the premises might also be stored upon it. The relevant activities here, regarded as entities, are the activities of the appellant’s company conducted in the shed and involving the collection, storage and distribution of produce grown by farmers who sell their produce to the appellant’s company. [23] The activities of those other farmers are also, of course, irrelevant here, where the central issue involves the use the appellant and his company make of the shed. Where, on any view, those activities are engaged in for the purpose of the appellant’s business of vegetable wholesaler they are logically and conveniently defined as a warehouse use. [24] The same conclusion is reached if the “best fit” approach to the definitions is adopted. It can be an appropriate method of construction where there are two or more defined uses, each of which is apt to cover the proposal: Livingstone Shire Council v Brian Hooper and M3 Architects [2004] QPELR 308, at 315. Because the dominant activity here is storage, the best fit is “warehouse”6. [25] I am satisfied the activities the subject of the appellant’s development application constitute a warehouse and not a farm use and the appeal should, therefore, be dismissed. [26] While the appellant’s reliance upon code assessment meant that detailed evidence was called from traffic and noise experts, and town planners, some of which suggested that the potential impacts of the proposed use might be appropriately and adequately dealt with by the imposition of conditions, I do not think it can be said that evidence was so persuasive as to warrant an order under the Integrated Planning Act 1997, s 4.1.5A (which allows the court to excuse non-compliance where the compliance has been ‘substantial’). 5 Arpedco (supra) at paras [18] and [19]. 6 The general provision (industry) would give way to the specific provision (warehouse) with respect to the subject matter of storage: Pearce and Geddes, Statutory Interpretation in Australia (5th Ed, 2001) para 4.30. -- 7 of 7 --