> Reported Decision : 124 LGERA 280 Land and Environment Court of New South Wales CITATION : Bouchahine v Hornsby Shire Council [2003] NSWLEC 24 APPLICANT: Bouchahine PARTIES : RESPONDENT: Hornsby Shire Council FILE NUMBER(S) : 10224 of 2002 CORAM: Bignold J KEY ISSUES: Question of Law :- proper interpretation of provisions including defined terms "home industry" and "light industry" in LEP. LEGISLATION CITED: Land and Environment Court 1979, s 56A Crosland v North Sydney Council (2000) 109 LGERA 244; CASES CITED: Doyle v Newcastle City Council (1990) 71LGRA 55; Gilderthorpe Investment v Sutherland Shire Council (2000) 109 LGERA 275 DATES OF HEARING: 06/12/02 EX TEMPORE JUDGMENT DATE : 12/06/2002 APPLICANT: Mr P Clay, Barrister SOLICITORS Macquarie Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr C Leggatt, Barrister SOLICITORS McKee's Legal Solutions JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Matter No .: 10224 of 2002 Coram : Bignold J 6 December 2002 JOHN BOUCHAHINE Applicant v HORNSBY SHIRE COUNCIL Respondent JUDGMENT 1. This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 against the decision of Commissioner Brown in proceedings where he dismissed an appeal challenging the Council's decision on a development application. It is apparent from his reasons for judgment published on 23 August 2002 that the question debated before the Commissioner which was crucial to the outcome and to his decision was, as he aptly put it in paragraph 10, whether the proposed development complied with the definition of "home industry". 2. In my respectful opinion that was the only relevant question for the Commissioner to encounter and he posed the task in my respectful opinion correctly. The definition of "home industry" is contained in the dictionary to the Hornsby Local Environmental Plan 1994. Its terms are set out in the judgment of the Commissioner at paragraph 9 of his judgment, together with other definitions contained in the dictionary which he thought might be relevant namely the definitions of "business premises", "light industry" and "vehicle repair station". The definition of "home industry" is as follows: home industry means a light industry carried on in a building where:- (a) the industry is undertaken by one or more of the permanent residents of the dwelling; and (b) the industry does not involve the employment of more than 3 persons other than those residents; and (c) the industry does not interfere in any way with the amenity of adjoining properties or the locality in which the dwelling is situated; and (d) the industry does not occupy an area of more than 200 m2; and (e) the industry does not involve the exhibition of any notice, advertisement or sign (other than a notice or sign which would fit within a rectangular figure 1.2 m in length and 0.6 m in height and exhibited on that dwelling or land to indicate the name and occupation of the residents) 3. Another definition, within the field of relevancy which could usefully have been included in the collection of relevant definitions relied upon in the present case, is the definition of "industry" contained in the Local Environmental Plan which is defined to mean "the manufacturing, assembling, altering, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, processing or adapting of any goods or articles for commercial purposes but (in the zoning table) does not include any other use of land elsewhere defined in this clause". 4. Before the Commissioner the question that he posed for himself, namely whether the proposed development fell within the definition of "home industry" being the only possible permissible category of development on the subject land having regard to its zoning and the controls on zoning imposed by the Local Environmental Plan, was answered by the Commissioner's acceptance of the argument that had been advanced on behalf of the Council that the proposal could not be defined as "home industry" because it was not a "light industry", another defined term, because that defined term expressly excluded from its ambit "a use of land elsewhere defined in this clause" and in this respect the Commissioner accepted the Council's argument that the term "vehicle repair station" defined in the dictionary, was such a use elsewhere defined and hence that use could not be a light industry as defined and since the definition of "light industry" was not applicable to the proposed development it could not be a "home industry" as defined because that definition in the Local Environmental Plan means a "light industry carried on in a building in a number of specified circumstances or conditions". 5. The logic of the Commissioner's reasoning and indeed the Council's argument that he wholly accepted would have been compelling but for the failure to properly interpret the term "home industry". Consideration of that definition and its employment in the Local Environmental Plan makes it obvious that the reference to "light industry" in the definition of "home industry" cannot be taken to mean that the defined term "light industry" also had to be applicable to the proposed development for if such were the case the employment of the term "home industry" in the Local Environmental Plan would have been entirely frustrated and self-defeating. This is because the term "home industry" is only employed in the prescription of the categories of permissible development in the Rural Zones A, B and BA (the subject site being within the zone Rural BA) and the Residential Zone AA in circumstances where the Local Environmental Plan expressly prohibits within such zones the categories of development defined as "light industry" and "industry". 6. If the definition of "home industry" were to be interpreted as requiring compliance with the definition of "light industry" in the Local Environmental Plan, which was the unstated assumption in the Council's argument before the Commissioner and in the Commissioner's reasoning, then the term "home industry" would be robbed of all meaning and the employment of the term in the Local Environmental Plan would be a total futility. 7. In these circumstances the proper interpretation of the term "home industry" so as to avoid a manifestly unreasonable and absurd result is that the words "light industry" where appearing within the definition of "home industry" do not assume their defined meaning. Rather they are to be interpreted as sanctioning a limited form of industrial use, which satisfies the stipulated criteria in paragraphs (a), (b), (c), (d) and (e) of the definition of "home industry". 8. Since the Commissioner's decision failed to appreciate that matter and the competing arguments advanced to him did not advert to it or draw his attention to it but rather proceeded upon the unstated assumption that the definition of "home industry" employed by the Local Environmental Plan necessarily imported it into it the defined meaning of "light industry", it follows that his judgment that the proposed development necessarily fell outside the definition of "home industry" involved a misconstruction of the Local Environmental Plan, and his decision on that count cannot stand. 9. Mr Leggat on behalf of the Respondent Council has sought to sustain the decision by an argument in the nature of an argument raised by way of notice of contention on an appeal, namely that the Commissioner's decision is sustainable by his conclusion and findings that the development fell within the prohibited category of "vehicle repair station". In my respectful judgment this argument is unsustainable because it does not successfully sever and immunise from the reasoning process or from the conclusions of fact or law expressed by the Commissioner his misconstruction of the definition of "home industry". 10. As was pointed out in the course of argument the proper approach to the categorisation of a development proposed in a development application is to inquire whether the category of development so applied for falls within the scope of the permissible categories of development. If the answer to that question is in the affirmative the question of categorisation need proceed no further. 11. So much is established by the decision of Justice Cripps, when Chief Judge of the Court in Doyle v Newcastle City Council (1990) 71LGRA 55. That decision has been consistently followed in this Court and there are a number of recently reported decisions of mine that were referred to in the course of argument which have followed the decision in Doyle: see Gilderthorpe Investment v Sutherland Shire Council (2000) 109 LGERA 275; Crosland v North Sydney Council (2000) 109 LGERA 244. 12. It follows from that authority that the decision that the development did not fall within a permissible, the only possible permissible category of development in this case, namely "home industry", was legally flawed because of the Commissioner's misconstruction of that term. Accordingly, the attempt to sustain the ultimate decision of the Commissioner on the basis of his conclusion that the development fell within the definition of "vehicle repair station" must be rejected. Instead, the proper question was, and remains, whether the proposed development falls within the definition of "home industry" being the only category of permissible development potentially available to the Applicant in this case. 13. The Commissioner's decision or conclusion that the development fell within the definition of "vehicle repair station" being an absolutely prohibited category of development, seems to have been also based upon his view (accepting the argument advanced by the Council) that because repair of vehicles was a part of the proposed development it necessarily fell within that definition. The legal error in so concluding is that it fails to appreciate that "industrial activity" as defined by the Local Environment Plan's definition of "industry" covers a wide range of industrial activity including "repairing, renovating", etc so that the argument before him, which he rejected in my view rightly, which seemed to focus attention upon a suggested distinction between "renovation" and "repair" was simply not to the point, since both activities are comprehended by the defined term "industry". 14. In all of the circumstances the decision appealed from cannot stand for the demonstrated legal error that infects the decision, and the question is whether the development should be categorised as falling within the definition of "home industry" properly construed in the manner that I have construed it. 15. Now gentlemen, should I conclude that question as a matter of law that it does, or should I refer the matter back to the Commissioner for reconsideration in the light of my judgment? Mr Leggat? LEGGAT: Your Honour, the Council is happy for the fate of the development application to be dealt with finally before your Honour today. I'm not sure if that addresses your Honour's question. HIS HONOUR: Yes, and how should that be then? LEGGAT: It would seem by the granting of consent subject to the conditions because there were no other issues in dispute. HIS HONOUR: I see. LEGGAT: And there are draft conditions that were filed and-- HIS HONOUR: Should I therefore say that the appeal should be allowed, that is the appeal against the Commissioner's decision be allowed, and in view of the fact that the decision on the 56A appeal is agreed between the parties to be determinative in the light of the other aspects of the case conducted by the Commissioner of the appeal to the Court against the Council's decision to invite the parties to bring in short minutes to give effect. Would that be appropriate? LEGGAT: Yes, it would be, your Honour. HIS HONOUR: Thank you, Mr Leggat. Mr Clay? CLAY: Yes, that is appropriate if your Honour pleases. HIS HONOUR: That's a very gracious concession by Mr Leggat. It does save the matter going back to the Commissioner and you'll readily accept that, Mr Clay? CLAY: Yes, your Honour, I do most readily. 16. For the aforementioned reasons the appeal must be allowed and the decision of the Commissioner set aside and I so order. Consequent upon the announcement for the reasons given of the fate of the present s 56A appeal I inquired of the parties as to whether the appropriate further action was to remit the decision to the Commissioner for reconsideration in accordance with my decision or whether some other order was appropriate. 17. The parties agree that in the light of my decision upholding the s 56A appeal and setting aside the Commissioner's decision that the whole appeal to the Court, that is the appeal pursuant to the Environmental Planning and Assessment Act s 97 is capable of disposition and that it will be disposed of by the Court being invited to make orders in accordance with short minutes to be brought in. In my view that is the appropriate course. 18. There ought obviously be no order for costs in the proceedings, Mr Clay? CLAY: Yes, I was going to invite your Honour to pronounce that. HIS HONOUR: Thank you, Mr Clay. The formal orders of the Court are as follows: 1. The appeal pursuant to s 56A of the Land and Environment Court Act 1979 is allowed. 2. The orders made by Commissioner Brown in his judgment of 23 August 2002 are set aside. 3. The parties are invited to bring in short minutes within fourteen days to finally dispose of the proceedings consistent with my judgment on the s 56A appeal. 4. The exhibits before the Commissioner be returned. 5. There be no order as to costs in the proceedings. 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.