Land and Environment Court of New South Wales CITATION: Bongers v Hawkesbury City Council [1999] NSWLEC 185 PARTIES APPLICANT Bongers RESPONDENT Hawkesbury City Council NUMBER: 40023 of 1999 CORAM: Pearlman J KEY ISSUES: Injunctions and Declarations :- Court's powers - whether apprehended breach - exercise of statutory discretion by council LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hawkesbury Local Environmetal Plan 1989 DATES OF HEARING: 05/28/1999 DATE OF JUDGMENT DELIVERY: 08/06/1999 APPLICANT Mr B J Preston (Barrister) WITH Mr D J Newhouse (Barrister) SOLICITORS LEGAL REPRESENTATIVES: Dunhill Madden Butler RESPONDENT Mr C W McEwen (Barrister) SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND 40023 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 6 August 1999 SALLY BONGERS Applicant v HAWKESBURY CITY COUNCIL Respondent JUDGMENT Introduction 1. In these class 4 proceedings, the applicant, Ms S Bongers, seeks the following relief: 1. A declaration that the Respondent Council has no power to grant consent either conditionally or unconditionally to development application no. DA90/98 in relation to property known as No. 714 Upper Colo Road, Upper Colo by reason of the proposed use being prohibited by the Hawkesbury Local Environmental Plan 1989. 2. An order that the Respondent Council be restrained from determining the subject development application other than by refusing consent. The legislative background 2. On 15 April 1998, ADI Ltd ("ADI") lodged development application DA90/98 with the respondent, Hawkesbury City Council ("the council"), seeking development approval for "installation of an open area site for EMI/EMC testing" . The land the subject of the development application is lot 2 in DP 751632 known as 714 Upper Colo Road, Upper Colo ("the site"). 3. Under the Hawkesbury Local Environmental Plan 1989 ("the LEP"), the site is within zone no 7(d) (Environmental Protection (Scenic)). Within that zone, "agriculture" (other than the felling of trees) is a purpose for which the site may be used without development consent, a number of purposes are prohibited, and all other purposes fall within an innominate class of development which may be carried out only with development consent. 4. Included amongst the purposes which are prohibited are "industries" and "light industries" . The term "industries" is not directly defined in the LEP, but cl 6 adopts the Environmental Planning and Assessment Model Provisions 1980 ("the model provisions"), which contains the following definition: 'industry' means: (a) any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962; or (b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business; but does not include an extractive industry. 5. In s 4 of the Factories, Shops and Industries Act 1962, the term "manufacturing process" is relevantly defined as follows: 'manufacturing process' means any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking up, or adapting of any goods or any articles or any part of an article for trade or sale or gain, or as ancillary to any business … 6. It is relevant to note two other definitions in the model provisions. The first is the definition of "generating works" which is stated to mean "a building or place used for the purpose of making or generating gas, electricity or other forms of energy". The second is "light industry" which is relevantly defined to mean "an industry … in which the processes carried on … do not interfere with the amenity or the neighbourhood …" . The factual background 7. The development application described the proposed use of the site as being for an "open area test site" . It stated that its purpose was to provide a commercial facility for the testing of electrical and electronic equipment for electromagnetic interference ("EMI"), an example of which are the interference lines which sometimes occur on a television screen when an electric motor is operating nearby. 8. The testing is designed to take place outdoors in an area which is quiet and relatively free from signals which might interfere with measurement. The test area is a large flat surface with a metal ground plane and a turntable and antenna tower. The piece of equipment being tested is turned on and operated, and the antenna picks up signals which are fed to a receiver to measure the levels of radiation from the piece of equipment. 9. The requirement for such testing derives from a suite of standards relating to EMI. In response to a request from the council for further information, ADI furnished a booklet prepared by the Australian Communication Authority (formerly the Spectrum Management Authority) which contains information about an electromagnetic compatibility (EMC) framework in Australia. 10. Briefly stated, the EMC framework has the following features: (a) its aim is to control EMI by requiring manufacturers and suppliers of electrical and electronic equipment to comply with certain standards; (b) before a product may be offered for sale, manufacturers or suppliers must, amongst other things, make what is called a "declaration of conformity" ; (c) the declaration of conformity is a formal attestation that the product meets the standards set by the EMC framework, and it must be supported by technical documentation, including test reports; (d) the testing may be carried out by a commercial testing facility; (e) before a product can be offered for sale, it must contain a label, which may only be affixed if the declaration of conformity has been completed and supported by the required technical documentation; (f) it may be an offence under the Radiocommunications Act 1992 to market a product that does not conform to the applicable standards. 11. Returning now to the development application assessment process, I note that at an early stage the council officers had doubts as to whether the proposed use was one permissible with consent, or whether it was prohibited, despite the fact that the council had granted development consent about three years previously in respect of a similar use of land at another location. On 13 May 1998, Mr Philip Pleffer, who was the council's town planner involved in the matter, informed Mr Stephen Enders, the council's town planning coordinator, of his opinion that the proposed use fell within the definition of "industry" under the LEP and was thus a prohibited use. Mr Enders agreed with that opinion, and ADI was informed of it. 12. ADI responded by furnishing an opinion from its solicitors, Deacons Graham & James, that the proposed use did not involve a "manufacturing process ". They advised that, although the proposed use could be regarded as the "making" of an "article" , namely, electro-magnetic energy, that electro-magnetic energy was not for "trade or sale or gain" and hence the proposed use was not an "industry". Their opinion was that the definition of "generating works" under the LEP most closely described the proposed use. 13. The council officers prepared a report for the council meeting of 25 August 1998, in which, amongst other things, they stated that the proposed development might be defined as "generating works" and accordingly was permissible with consent. They recommended approval of the development application. 14. The council did not adopt that recommendation. Instead, it resolved: That this matter be deferred until such time that all issues are addressed and Council seek independent legal and technical advice on the impacts to the area and further reported to Council. 15. The council obtained legal advice from its solicitors, Abbott Tout. They agreed with Deacons Graham & James that the proposed use did not fall within the definition of "industry", and they advised that, consequently, the proposed use fell within the innominate uses under the LEP and was permissible with consent. They also agreed with Deacons Graham & James that the use could fall within the definition of "generating works" , but they considered that it was unnecessary so to characterise it, it simply being an innominate use. 16. On 1 October 1998, Mr Pleffer notified the applicant, who had been an objector to the proposed development, that the council had received legal advice confirming that the proposed use was permissible, and he asked her to provide a list of suitably qualified persons who could provide technical advice on the likely impacts of the proposed use. ADI was similarly notified. The competing arguments 17. Against that statutory and factual background, the competing arguments may be briefly stated. 18. Mr Preston, appearing for the applicant, presented the following argument: (a) The proposed development falls within the definition of "manufacturing process"; (b) That is because the testing which ADI proposes to carry out is an integral and necessary part of the process by which manufacturers of electrical or electronic equipment make, prepare, finish or adapt that equipment for trade or sale or gain ; (c) The testing is a necessary part of the process because it is required in order to comply with the EMC framework and it is a necessary precondition for the sale of the equipment in the market; (d) Alternatively, the proposed development falls within the definition of " manufacturing process" because the testing which ADI proposed to carry out is "ancillary to any business" of manufacturing electrical and electronic equipment, having regard to the definition of "ancillary" in the Macquarie Dictionary as "auxiliary" which it defines as "giving support; helping; aiding; assisting" ; (e) So characterising the proposed development accords with the dictum of Mahoney JA in Egan and Ors v Hawkesbury City Council and Anor (1993) 79 LGERA 321 at 327 that the definition of "manufacturing process" in the Factories, Shops and Industries Act is a wide and comprehensive definition and should not be given a restricted construction; (f) It follows therefore that the proposed development falls within the definition of "industry" in the model provisions, and it is thus prohibited development within the 7(d) Environmental Protection (Scenic) zone under the LEP; (g) Accordingly, the council has no power to grant development consent in respect of the proposed development; (h) The council records indicate, however, its acceptance of the characterisation of the proposed development as not being an "industry" and hence it is likely that the council will determine the development application by granting development consent, which will constitute "an apprehended contravention" of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") within the meaning of s 122 of that Act, entitling the applicant to an order under s 123 to restrain that contravention. 19. The competing argument put by Mr McEwen, appearing for the council, was based on two propositions - first, that the Court has no jurisdiction to make the declaration or grant the injunction which the applicant seeks, and, secondly and alternatively, that the proposed development is not an "industry" under the LEP. 20. In Mr McEwen's submission, the council has a duty under the EP&A Act to determine the development application. (Its obligations arise under the unamended EP&A Act, since the development application was made before the 1997 amendments to the EP&A Act came into force - see Div 1 of Pt 3 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998). The carrying out of the council's duty involves the exercise of a statutory discretion under s 91(1) either to grant consent conditionally or unconditionally or to refuse consent. 21. Mr McEwen pointed out that the council has not yet exercised its discretion, nor has it yet taken the threshold step of characterising the proposed use as an innominate use permissible with consent within the relevant zone. All that the council has done so far is to defer the exercise of its discretion to grant or refuse consent pending legal and technical advice. Its officers have expressed a view on the issue of characterisation, but the council itself has expressed no view. 22. He submitted that there can be no apprehended breach at this time. What the applicant apprehends is that the council might exercise its discretion and grant consent, and, in doing so, characterise the proposed use as an innominate use permissible with consent. That does not involve a breach of the planning law. The council will only commit a breach of the planning law if, on judicial review, the Court was able to say that the determination by the council was not reasonably open to it. Is it open to the Court to make the orders sought? 23. The necessity for development consent arises under s 76 of the EP&A Act which is in the following terms: 76 (1) Subject to this Act, where an environmental instrument provides that development specified therein may be carried out without the necessity for consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies except in accordance with the provisions of that instrument. (2) Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless: (a) that consent has been obtained and is in force under this Act; and (b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument (3) Subject to this Act, where an environmental planning instrument provides that development specified therein is prohibited, a person shall not carry out that development on land to which that provision applies. 24. The action which triggers the process for obtaining consent is the making of a development application. A "development application" is defined in s 4 as "an application for consent … to carry out development". Section 77 contains provisions for making development applications, by providing by whom they may be made, what form they must take and what information and documents must accompany them. Section 77(3)(a) stipulates that a development application must be made to "the consent authority" which is relevantly defined in s 4 as "… the council having the function to determine the application" . 25. Sections 77A through to 89 deal with various aspects which may arise when a development application is made, such as the necessity for the concurrence of the Minister or another public authority, or the additional requirements which relate to designated development. None of those sections apply in this case. 26. Section 90(1) sets out the matters for consideration by the consent authority when determining a development application, and those matters include the provisions of any environmental planning instrument. Section 91(1) provides for the determination of a development application by granting consent conditionally or unconditionally or by refusing consent. 27. Mr Preston's contention is that the council has no statutory function to exercise under the provisions I have set out in circumstances where the development is prohibited. Hence, in his submission, it is not a question of compelling the council to exercise its statutory discretion in any particular manner; rather, the issue is whether the council should be restrained from purporting to exercise a power which it does not have. 28. For this proposition, Mr Preston relied on my decision in Parramatta City Council v Precision Rubber Service Pty Ltd and Anor (10 March 1995, unreported). That was a case where the local council had granted development consent in respect of development which, under the relevant environmental planning instrument, could be carried out without consent. I held that the consent was not a valid and effectual consent. My reason for so holding was that, since no consent was required under the relevant environmental planning instrument, the council had no function in relation to the particular development, and the council was not empowered to grant development consent where no development consent was required. 29. However, I think that Parramatta City Council v Precision Rubber Service is distinguishable from the present case. There, the development application was made for a development for which no consent was required. The council in that case could neither consent to the development (because no consent was required) nor could it refuse the development (because the development was not prohibited and could be carried out without the necessity for consent to be obtained). 30. In this case, the circumstances are different. Here the proposed development is not development which may be carried out without consent, because under the LEP only development for the purpose of agriculture is development where consent is not required. Under the LEP, the proposed development is accordingly either permissible with consent or prohibited. 31. In determining the development application, the council must take into consideration, under s 90(1)(a)(i), the provisions of the LEP. It must therefore consider, in this case, whether, under the provisions of the LEP, the proposed development is permissible with consent or whether it is prohibited. In other words, its consideration of the provisions of the LEP will lead the council to characterise the proposed development in accordance with those provisions. If, having considered the LEP and the nature of the proposed development, the council characterises the proposed development as falling within innominate uses which are permissible with consent, it may grant consent conditionally or unconditionally. If, having considered the LEP and the nature of the proposed development, the council characterises the proposed development as prohibited, then it must refuse to grant consent. 32. In either case, the council has a function to perform. It must consider the provisions of the LEP, characterise the proposed development having regard to the nature of what is proposed in the light of those provisions, and determine the development application. There is no question of lack of power. The council has the power to exercise its statutory discretion, but it has not yet exercised that power. 33. It is true that the Court has jurisdiction, under s 124 of the EP&A Act, to make any order it thinks fit to remedy or restrain a breach of that Act. Section 122 makes it plain that the reference to a breach of the EP&A Act includes an "… apprehended contravention of …" the Act. But I cannot discern, in the circumstances of this case, any such apprehended contravention. The council has made only one decision in relation to the development application, which was to defer it pending legal and technical advice. Despite the opinions of its officers, expressed in their report to council and their letters to ADI, the applicant and other objectors, that the proposed use is permissible with consent, no such characterisation has been made by the council itself, nor has it determined the development application. Accordingly, the Court's jurisdiction is not invoked by the application of s 124 of the EP&A Act in the circumstances of this case. 34. The Court does have jurisdiction under s 20(2)(b) of the Land and Environment Court Act 1979 ("the Court Act") "to review, or command, the exercise of a function conferred or imposed by a planning or environmental law…" . The EP&A Act is categorised as a "planning or environmental law" by s 20(3) of the Court Act. However, no question of review arises in this case, because no relevant function has yet been exercised by the council. 35. The Court could, pursuant to s 20(2)(b) of the Court Act, command the exercise of a function by the council. This section would empower the Court to make an order in the nature of mandamus in an appropriate case. For example, the Court could, if appropriate in the circumstances, order a council to determine a development application before it ( Graham v Hornsby Shire Council, Bannon J, 11 November 1996, unreported). But that is a discretionary order, and in my opinion no circumstances have arisen in this case which would warrant the exercise of such a discretion in favour of the applicant. The council has not failed to determine the development application. The material before me indicates that it has been assessing the development application for that purpose, and there is no indication that it will fail to carry out its duty to determine the development application. Furthermore, an order in the nature of mandamus cannot command the exercise of discretion in a particular way ( Randall v The Council of the Town of Northcote (1910) 11 CLR 100 at 105). 36. In the circumstances of this case, Mr McEwen is correct in submitting that the effect of the orders which the applicant seeks is that the Court would be carrying out the function which the EP&A Act confers, not on the Court, but on the council. The Court has no power to substitute its own decision for that of the council where the council is exercising a discretion which the legislature has vested in the council ( Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors (1986) 162 CLR 24 at p 40). The Court's power is limited to a review of the council's decision after it has determined the development application, if an application for judicial review is made, in order to determine if the decision was made in accordance with law, that is, if the council's decision was reasonably open to it ( Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors at pp 40 - 41). 37. In fairness to Mr Preston's careful argument, I should say that I accept that a declaratory order (which is one of the orders which the applicant seeks) may be made in relation to conduct which has not yet taken place. Mr Preston referred to a passage from the judgment of Barwick CJ in The Commonwealth of Australia v Sterling Nicholas Duty Free Pty Ltd (1971) 126 CLR 297 at 305 to that effect. He also referred me to Penrith City Council v Waste Management Authority of New South Wales (1990) 71 LGRA 108 and Blakeney v Mosman Municipal Council (1983) 51 LGRA 1 as examples of cases where this Court has made a declaratory order before the determination of a development application has been made by the relevant council. But neither of those two cases is of assistance here. 38. In Penrith City Council v Waste Management Authority , the council challenged the validity of a development application on the basis that it was designated development and thus was required to be, but was not, accompanied by an environmental impact statement. The question of whether the Court was empowered to make such a declaration does not appear to have been in issue, but, in any event, those circumstances are quite different from those which pertain in this case. In that case, the council sought a declaration as to the proper characterisation of the development the subject of the development application as a prerequisite to determining whether or not the development application was valid, not, as in this case, as a threshold step in the exercise of a discretion as to whether to grant or refuse consent. 39. Blakeney v Mosman Municipal Council involved a question of law referred to the Chief Judge pursuant to s 36(5) of the Court Act during an appeal against the refusal of the local council to grant consent to a particular development application. The Court determined the question of law by finding that, in the particular circumstances, it was not open to the council (or the Court on appeal) to grant development consent. On an appeal, the Court stands in the shoes of the council whose decision is the subject of the appeal (s 39(2) of the Court Act) and determines itself whether to grant or refuse consent. In such proceedings, the Court must itself determine any question of characterisation (as the council would have been required to do) in order to exercise its discretion as to whether to grant or refuse consent. The present case is not such a case. No determination has yet been made by the council and therefore no right of appeal has yet arisen. 40. I am of the opinion that, properly understood, the orders which the applicant seeks in this case would require the Court to usurp a function which the legislature has vested in the council. No circumstances have arisen in which it would be appropriate for the Court to do so. 41. It follows from the foregoing that it is unnecessary for me to consider the competing arguments about the characterisation of the proposed use, and that it is not appropriate for the Court to come to a conclusion on whether or not the proposed use is an "industry" within the meaning of the LEP. That characterisation task remains the function of the council to perform. Conclusion 42. For the foregoing reasons, I decline to make the orders which the applicant seeks. My formal orders therefore are as follows: (1) The application is dismissed. (2) The applicant must pay the costs of the council as agreed or as assessed. (3) The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.