A vote by councillors on 12 December to approve a brewery in the green wedge zone at Fingal flies in the face of two VCAT cases, which decided that “brewery” is not – contrary to what councillors were told in a planners’ report – a “Rural Industry”.
The planners’ argument, that the brewery plan “is accepted” or “is considered” to have cleared the “industry” hurdle, failed to mention either of the cases, which are examined below.
The brewery vote echoed an earlier councillor decision to accept officers’ advice, and vote for a near-doubling of patrons at the Willow Creek Winery in Balnarring. That advice may yet be challenged at a VCAT hearing.
In the first brewery case before the Victorian Civil and Administrative Tribunal, Member J. A. Bennett ruled that a brewery “falls within the definition of industry rather than rural industry because it involves ‘manufacture’.”
He ruled that “… I am not satisfied the brewery, even though of ‘micro’ scale, is permitted in the zone.” Nor was he convinced that the proposal – a small brewery to be attached to a restaurant at Cowes on Phillip Island – “offers a net community benefit…” as set out in the planning scheme.
In the second case, also located in Bass Coast Shire, adjacent to the Mornington Peninsula Shire, VCAT Senior Member Anthony Liston found that “brewery” was an industry “other than a rural industry, and is prohibited within the farming zones”. The applicant’s property was a small rural lot outside Cowes.
Bass Coast Shire, apparently keen to augment the island’s tourist facilities, had approved this brewery, as it had embraced the earlier application, only to have both overturned at VCAT.
In the first case, the tribunal’s decision was handed down on 23 October 2009. It involved an appeal to VCAT from Mr Stephen Kemp, representing Friends of the Koalas Inc and Phillip Island Nature Park, before Member Bennett.
Hard on its heels came the second appeal, on 18 December, from Mr Garth Rainsbury and unnamed “others”, arguing primarily that the brewery was inappropriate on rural land.
In this case Senior Member Liston wrote a more closely argued decision. He noted that part of the proposal was establishment of a hop garden capable of supplying between half and all of the hops the proposed brewery would need.
This contrasts with the brewery Mornington Peninsula’s councillors approved on 12 December at the property known as ‘Markdel’, in Sandy Rd, where no mention was made by either the applicant or shire planners of whether the planned hops crop would provide sufficient product to satisfy the brewery’s need.
Indeed, the officers’ report on Markdel mentioned no more than that unnamed “core ingredients” grown on the land must be included in the brew.
It is perhaps pertinent to point out that in the case of two other breweries approved on the Mornington Peninsula – one at Cape Schanck, the other at Red Hill – each applicant was required by the shire to grow all the hops needed for brewing on the property. Barragunda was never built; presumably the Red Hill brewery is complying with this permit condition.
But Bandicoot digresses, as so often he does. Back to Senior Member Liston.
While he generally favoured the application, he turned his focus on “the important question … whether or not the proposal is permissible”: could the proposed micro-brewery be “properly characterised as a rural industry” and therefore a permissible land use within the farming zone?
Beer making, he stated, demonstrating a close interest in the subject, involved extracting sugar and flavours from malted barley (Markdel proposes a half-hectare barley crop, equal to a couple of percent of its needs) plus releasing flavour and preservatives from the hops using heated water.
The resulting liquor is then fermented to make beer, Senior Member Liston continued.
He then turned to the definition of rural industry – land used to “handle, treat, process, or pack agricultural produce; or service or repair plant, or equipment, used in agriculture”. Examples: abattoirs and sawmills.
Drawing on the Kemp case, he quoted Member Bennett’s ruling as follows: “I am satisfied that a micro-brewery falls within the definition of industry rather than rural industry,” Member Bennett said, “because it involves ‘manufacture’ and that as a standalone usage is prohibited in the rural activity zone”.
Senior Member Liston then proceeded (as so many Senior Members do) to put his colleague’s statement under the Microscope of Relentless Logic.
“I agree that brewing is a process of manufacture,” he stated. “However, I do not think it can be correct that as a consequence brewing is not a rural industry. Rural industry is nested within the definition of industry. Industry includes the process of manufacture: it is not at all clear to me that the definition of rural industry does, or even implies, that manufacturing is excluded from the scope of the defined use.”
Being a Senior Member, Mr Liston knows that his every syllable will be scrutinised for nuances. This can result in shades of meaning known only to the Great Poets, God and VCAT Senior Members.
But, in that “manufacturing” process, where did malted barley stand, he asked. Is it an agricultural product? Town planner Amanda Ring (for the brewery) submitted that hops processing brought “brewery” within the ambit of “rural industry”.
A lawyer of Bandicoot’s very slight acquaintance, Peter O’Farrell (also for the brewery), seized Ms Ring’s point and expanded it into a whole new area of rural zone debate. Processing agricultural produce, he argued, involved a continuum of activities – peas to frozen peas, then on to pea soup, he cited as an example.
Applying the argument to barley, it was submitted that malting the grain was “a very early stage in the continuum of processes … and that it had not ceased to be an agricultural product”.
Alas, the argument, though intriguing, did not find favour with Member Liston. Turning to Ms Ring’s argument, he asked: is the substantial purpose of brewing the processing of hops?
Then came the logic that can pole-vault Members into Senior Members in one exquisite Decision.
“… [H]ops are a very important ingredient in most beers, in that it is hops which make a substantial contribution to flavour, and provide compounds which help preserve the beer,” he began.
“However, beers are essentially alcoholic beverages produced by the fermentation of sugars. … I do not think it can be concluded that hops are so central to the process of making beer that the substantial purpose of brewing is the processing of hops, an agricultural product.
“I think it is highly likely that a brewery which malted its own grain could be characterised as a rural industry, but this is not what is proposed in this case. I find that a conventional micro-brewery, which imports its malted grains from another processor, cannot be characterised as a rural industry.
“Consequentially, the micro-brewery is an industry, other than a rural industry, and is a prohibited use within the farming zone.”
Applying Senior Member Liston’s logic to Markdel, the brewery, although approved would, if appealed to VCAT, face a shaky future especially if it came before Senior Member Liston.
With an application that will grow only a fraction, a soupçon, of the barley required, it appears (if Bandicoot reads Senior Member Liston correctly) that a challenge at VCAT would see off Markdel’s brewery plans.
It should also see off any other such brewery proposal that does not include growing a very substantial crop of barley that would be malted on the property – a proposition requiring very broad acres and astonishingly deep pockets.
Alternatively, the Markdel applicant could vigorously pursue the second string to his brewing bow, concentrating on cider and perry (fermented pears) to pull in the crowds of young bucks and their belles.
- Kemp & Ors v Bass Coast SC  VCAT 2267 (23 October 2009)
- Rainsbury v Bass Coast SC  VCAT 2686 (18 December 2009)