> Land and Environment Court of New South Wales CITATION : McIlveen v Baiada Pty Limited [2003] NSWLEC 174 APPLICANT: Robert Douglas McIlveen PARTIES : RESPONDENT: Baiada Poultry Pty Limited FILE NUMBER(S) : 40001 of 2002 CORAM: Lloyd J Injunctions and Declarations :- development consents - extent of KEY ISSUES: Existing Use Rights: - nature and extent - liberal interpretation of consent - continuance and limitations Environmental Planning and Assessment Act 1979 s 76A, s 81A(1), s 109(1), s 109(2), s 109B, Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Sch 3 cl 7 LEGISLATION CITED: Local Government Act 1919 s 342U Tamworth Local Environmental Plan 1985 Tamworth Local Environmental Plan 1996 Armstrong v Ashfield Municipal Council (2002) 124 LGERA 189; Boral Resources (NSW) Pty Ltd v Wingecarribee Shire Council (2003) 124 LGERA 90; Hastings Municipal Council v Mineral Deposits Ltd (1981) 43 LGRA 198; CASES CITED: King v Lewis (1991) 74 LGRA 362; King v Lewis (1995) 88 LGERA 183; Mona Vale Pty Ltd v Pittwater Council (2003) 124 LGERA 449; Moore Development Group Pty Ltd v Pittwater City Council [2003] NSWLEC 130; Permewan Wright Consolidated Pty Ltd v Attorney- General (on the relation of Franklins Stores Pty Ltd) (1977) 36 LGRA 381 DATES OF HEARING: 23/06/2003, 24/06/2003, 25/06/2003 and 26/06/2003 DATE OF JUDGMENT: 07/24/2003 APPLICANT: Mr J B Maston (barrister) and Mr C Dimitriadis (barrister) SOLICITORS: Duncan Maclean LEGAL REPRESENTATIVES: RESPONDENT: Mr A E Galasso (barrister) SOLICITORS: Mallesons Stephen Jaques JUDGMENT: - 18 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40001 of 2002 Lloyd J 24 July 2003 ROBERT DOUGLAS MCILVEEN Applicant v BAIADA POULTRY PTY LIMITED Respondent JUDGMENT Introduction 1 The respondent, Baiada Poultry Pty Limited, is using premises in West Tamworth for the killing, processing and packaging of poultry. The applicant, who owns a property opposite the respondent's premises, claims a declaration that the respondent is carrying on development without development consent and that it is not entitled to so use its premises without first obtaining development consent. The applicant alternatively claims a declaration that the respondent is not entitled to use its premises to kill, process or package more than nine thousand birds per day. The applicant also claims consequential relief. 2 The respondent says that it is using its premises pursuant to a series of consents and approvals granted for each aspect of its activities; and it may lawfully do so under the protection afforded by ss 109B and 81A(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The respondent alternatively says that its use of the premises is protected by s 109 of that Act. The respondent further says that none of the consents purport to limit in any way the number or quantity of birds killed, processed or packaged at its premises, or limit the number of employees engaged in the business. 3 Before turning to the detailed facts, it is convenient to consider, firstly, the relevant legislation controlling the lawfulness or otherwise of the respondent's use of its land. The relevant legislation 4 Section 76A of the EP&A Act provides that where an environmental planning instrument prohibits the carrying out of development without development consent, a person must not carry out development unless a consent has been obtained and is in force and then only in accordance with the consent and the instrument. 5 Section 109(1) of the EP&A Act provides: 109 Continuance of and limitations on other lawful uses (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. 6 Section 109(2) of the EP&A Act commenced on 3 February 1986. It does not have retrospective operation and thus applies only on and from that date (King v Lewis (1995) 88 LGERA 183 at 197). It provides: (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. 7 Section 109B of the EP&A Act provides: 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act. 8 It is important to note that s 109B applies to consents lawfully granted before as well as after the commencement of the Act (which commenced on 1 September 1980) and prevails over s 109: see sub-s (2) of s 109B. In particular, for the purpose of the present case s 109B prevails over sub-s (2)(c) of s 109. 9 Finally as to the EP&A Act, s 81A(1) provides: 81A Effects of development consents and commencement of development (1) Erection of buildings A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M. Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building. (Section 109M is not presently relevant.) 10 Upon the commencement of the EP&A Act there were also enacted transitional provisions which preserved the validity of consents granted before the commencement of the Act and which deemed such consents to be development consents within the meaning of the EP&A Act. The transitional provisions are contained in Sch 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. The relevant provision is cl 7 of Sch 3: 7 Consents, approvals and permissions (1) Any consent, approval or permission granted in respect of an application made under a former planning instrument, and in force immediately before the appointed day, shall, subject to subclause (2), continue in full force and effect subject to (a) the operation of any provision of that instrument or any term or condition of that consent, approval or permission governing or relating to the currency, duration or continuing legal effect of that consent, approval or permission; and (b) the operation of any condition (other than that referred to in paragraph (a)), restriction or limitation, subject to which that consent, approval or permission was granted. (2) Where no provision or term or condition of the type referred to in subclause (1) (a) operates in respect of a consent, approval or permission therein mentioned, the provisions of section 99 of the Environmental Planning and Assessment Act, 1979, shall apply to that consent, approval or permission as if it were a consent referred to in that section which had taken effect on the appointed day. (3) The provisions of section 103 of the Environmental Planning and Assessment Act, 1979, shall apply to a consent referred to in subclause (1) as if that consent were a consent referred to in that section. (4) A consent, approval or permission referred to in subclause (1) is taken to be a development consent within the meaning of the Environmental Planning and Assessment Act 1979 . 11 The reference to a "former planning instrument' in turn requires reference to the definition of that term in cl 1: former planning instrument means a prescribed scheme or an interim development order or The Town and Country Planning (General Interim Development) Ordinance. 12 A "prescribed scheme" is a planning scheme ordinance made under the Local Government Act 1919 (the LG Act 1919") and an "interim development order" is an interim development order made under that Act (cl 1(1)). 13 As will be seen from the chronology which appears later, there are two former planning instruments which apply in the present case, the Tamworth Planning Scheme Ordinance 1979 ("TPSO 1979") (which commenced on 12 January 1979) and Interim Development Order No. 1 – City of Tamworth ("IDO No. 1") (which commenced on 7 April 1966). 14 A number of the consents relating to the use of the respondent's premises were granted during the currency of TPSO 1979 and IDO No. 1. 15 Section 342U(4) of the LG Act 1919, which was inserted on 7 November 1962, contained the predecessor to s 109(1) of the EP&A Act. It provided: (4) Interim development of any land to which an interim development order applies shall not be carried out except as may be permitted by or under the authority of the interim development order and subject to such conditions and restrictions as may be imposed by or under the interim development order and to such provisions as may apply by virtue of the interim development order: Provided that nothing in any interim development order shall prevent the continuance of the use of any land or building for the purposes for which such land or building was lawfully used immediately before the coming into operation of the interim development order. 16 Clause 70 of TPSO 1979 was the predecessor to the present s 109B of the EP&A Act. It provided: Nothing in this Ordinance shall prevent the carrying out of any development in accordance with the terms of Interim Development Order No. 1 – City of Tamworth or of any consent granted under that Order, if the carrying out of the development was commenced, but not completed before the appointed day or is substantially commenced within a period of 12 months after that day. 17 Despite the submissions of the respondent to the contrary, it is clear that the Town and Country Planning (General Interim Development) Ordinance (Ordinance No. 105) has never applied to the City of Tamworth. The council did not resolve to prepare a planning scheme until 8 December 1964. IDO No. 1 commenced on 7 April 1966, upon which date interim development control commenced in Tamworth and the council became an interim development authority. No interim development consent was required for development before 7 April 1966. Interim development of land was controlled between 7 April 1966 and the commencement of the TPSO 1979 on 12 January 1979 by the interim development order: see s 342U(4) of the LG Act 1919 set out in par [15] above. (See generally A J Nott, Supplement to Environmental Planning and Development Law (NSW), Penman Press, 1984, pp. 8-9; Permewan Wright Consolidated Pty Ltd v Attorney-General (on the relation of Franklins Stores Pty Ltd) (1977) 36 LGRA 381 at 384-387, per Jacobs J; Hastings Municipal Council v Mineral Deposits Ltd (1981) 43 LGRA 198 at 204-208, per McClelland J.) Prior to 7 April 1966, however, the approval of the council for the erection of any building was required under Pt XI of the LG Act 1919. The respondent's land 18 The respondent's land was originally known as lots 7, 8, 9, 10 and 11 in section AF, having frontages on three sides to In Street, Out Street, and Varley Park (which lies between In Street and Out Street). These lots were purchased by the respondent in two parts, on 3 December 1964 and on 14 January 1965. These lots were subsequently consolidated and are now known as lot 24 in deposited plan 832149. 19 On 27 January 1988 the respondent acquired a former service station on lot 6, which adjoins the former lot 7. On 27 July 1990 the respondent acquired lot A in deposited plan 37383 from A D, H J and D K Clark and which adjoins lot 6 ("the Clark Motors site") and which seems to have been previously known as lot 5 in section AF. On 17 December 1991 the respondent became the registered proprietor of lot 1 in deposited plan 799461 (which appears to be a consolidation of the Clark Motors site). Finally, in about 1999 the respondent acquired a lease of lot 1 in deposited plan 81422, being the land formerly known as Varley Park, which adjoins the former lots 8 and 9. Planning history 20 Lots 7, 8, 9 and 10 in section AF (now part of lot 24 in deposited plan 832149) have been used for poultry killing and processing and for activities associated therewith for over 50 years. Since 1965, the original operations have expanded beyond lot 24 in deposited plan 832149 and have been the subject of numerous approvals and development consents involving alterations and additions. As I understand it, Mr J B Maston, appearing for the applicant, accepts the fact that the use of the subject land for such a purpose was permissible with consent at all relevant times and under all the planning instruments and former planning instruments that applied to the land. 21 As noted in par [13] and [17] above, until 7 April 1966 there were no planning controls governing the subject land, but the LG Act 1919 regulated building works in the Tamworth area. Sections 310 and 311 of that Act stated that no buildings could be erected without the approval of the council, and all buildings must be erected in compliance with either Ordinance No. 70 or, previously, Ordinance No. 71 (the equivalent to the current Building Code of Australia). 22 On 7 April 1966, approximately two years after the present respondent commenced its operations at Tamworth, IDO No. 1 commenced. Thereafter the respondent was required to obtain interim development consent and building approval for all new or additional works and buildings on the subject land. IDO No. 1 did not include any specific provision relating to the continuation of existing uses post the introduction of its zoning regime. As noted in par [15] above, however, s 342U(4) of the LG Act 1919, was a provision to the same effect in stating "…that nothing in an interim development order shall prevent the continuance of the use of any land or building for the purposes for which such land or building was lawfully used immediately before the coming into operation of the interim development order." 23 It is common ground that under IDO No. 1 the subject land was zoned "4. Industrial". Further, due to the absence of "abattoir" as a defined term in this particular instrument, the most appropriate categorisation of the use of the respondent's operations seems to have been "rural industry" as defined in the Model Provisions which applied to IDO No. 1. A "rural industry" was defined as "handling, treating, processing or packing of primary products and includes the servicing in a workshop of plant or equipment used for rural purposes". "Rural industry" was a permissible use in the "4. Industrial" zone. 24 On 12 January 1979, TPSO 1979 commenced. This ordinance provided for two industrial-type zones: "4(a) General Industrial" and "4(b) Local Industrial", of which the subject land was zoned the latter. "Rural Industries" were permitted as innominate uses in both zones. I have noted in par [16] above the terms of cl 70 of that Ordinance. 25 Tamworth Local Environmental Plan 1985 ("Tamworth LEP 1985") commenced on 22 February 1985, repealing the TPSO 1979. Under Tamworth LEP 1985, the land was zoned "4(a) Industrial "A" (General Industrial)", the sole industrial zone provided for in the instrument. In the absence of the defined term "abattoir", the appropriate classification of the respondent's operation was again "rural industry". 26 On 4 April 1996, Tamworth Local Environmental Plan 1996 ("Tamworth LEP 1996") commenced, repealing Tamworth LEP 1985. The land was zoned "4. Industrial" pursuant to this instrument. Tamworth LEP 1996 is the first planning instrument that includes a definition of "abattoir", which is a permissible use in the "4. Industrial" zone. History of Consents and Approvals Approvals under the Local Government Act 1919 27 Numerous relevant approvals were granted pursuant to the LGA 1919. None of such approvals were subject to conditions limiting the killing or processing of poultry in any respect. The first building approval (BA No. 177/38) relevant to the poultry processing operation on the subject land was issued pursuant to the LGA 1919 in November 1938. The expressed purpose of the building works was that of a "chilling room" within an existing building situated upon lots 8 and 9 in section AF. 28 On 15 June and 27 July 1943, building works for a "milk room" (BA No. 24/43) and "proposed brick plucking room and W.C." (BA No. 31/43) respectively, both on lots 8 and 9 in section AF, were approved. On 22 August 1944, a building for the purpose of a "poultry dressing room and cold storage chamber", which according to the plan, appear to be on lot 7 in section AF (BA No. 52/44) was approved by the council. 29 On 6 February 1945, building works for the purpose of "addition[s] to poultry shed" on lots 7, 8 and 9 in section AF (BA No. 13/45) were approved, and on 6 March 1945 a "new drive for fowls", "new fowl yards", "new shed" and "shower and W.C." (BA No. 19/45) were approved for lots 7, 8 and 9 in section AF. On 27 November 1945, BA No. 151/45 for a "new [rabbit] packing room" on lots 7, 8 and 9 in section AF was granted, but which appears from the plan to be on lot 9 in section AF. On 11 December 1945 BA No. 156/45 for a "brick office" on lots 10 and 11 in section AF, was approved. Although the plans are not entirely clear, it appears as if the office was to be constructed on lot 10 in section AF. 30 Five "garages" on lot 10 in section AF were approved (BA No. 47/46) on 16 April 1946; which were followed by a "new ice manufacturing room" for the "purpose of manufacturing ice" on lots 7, 8 and 9 in section AF, approved on 3 June 1947 (BA No. 123/47). The plan appears to show the room on lots 8 and 9 in section AF. A "new packing, cold storage and box rooms" on lots 7 and 9 in section AF (BA No. 111/49) was approved on 14 June 1949. The plan, however, appears to show the new rooms on lot 7 only. A new "cool room" was approved on lots 8 and 9 (BA No. 114/52) on 9 August 1952. The plan, however, appears to show the new cool room on lot 8 in section AF only. 31 Finally, on 24 August 1965 building works for the purpose of constructing a "proposed timber framed residence" on lot 11 in section AF (BA No. 335/65) and a "proposed building for Baiada" on lots 7, 8 and 9 in section AF (BA No. 350/65) were approved on the same day. The latter structure involved the replacement of the old poultry section of the freezing works with a modern poultry-processing factory including, inter alia, a loading bank and scales platform. Although the plan is not entirely clear, it seems that this building is mainly on lot 7 in section AF. Consents under Interim Development Order No. 1 32 The relevant interim development applications ("IDA's") pursuant to IDO No. 1 begin with a consent granted on 22 April 1969. Additions were approved consisting of a female amenities block, a concrete base for a cooling tower, garage alterations, and a new external toilet at the residence spanning lots 1, 2, 3 and 4 (IDA No. 154[/69], referred to in BA No. 117/69). In IDA No. 154[/69] the use of the land was noted as being that of a "[f]reezing and poultry killing centre". It seems that the reference to lots 1, 2, 3 and 4 is an error. An examination of the plans shows the garages, the female amenities block and the new external toilet at the residence as all being within the location of lot 11 in section AF. The base for the cooling tower appears to be within the location of lot 8 in section AF. 33 The following year, on 28 July 1970, a "new loading dock and steel sliding door" on lots 7/9 in section AF (IDA No. 320/70, referred to in BA No. 278/70) were consented to. IDA No. 320/70 described the present use of the subject land as "poultry works". The fact that the application describes the site as lots 7/9 confirms that the land was regarded as a unit. In January 1971, consent was granted to an internal office within the existing building on lot 7 in section AF (IDA No. 629/[70], referred to in BA No. 542/70). On 25 May 1971, a "proposed new brick engine room" on lots 7, 8 and 9 of the subject land (IDA No. 196/71, referred to in BA No. 163/71) was approved. The precise location of the engine room appears from the plan to be on the site of lot 8 in section AF. Again, the present use of the land, as stated in the IDA No. 196/71, was that of a poultry-processing factory. 34 On 26 April 1972, a "new cool room and loading dock" on lot 8 in section AF was consented to by the council (IDA No. 113/72, referred to in BA No. 97/72). The plans appear to show this work on lot 8 in section AF. The reference in both the application and the consent to lots 7-11 inclusive confirms that both the respondent and the council regarded these lots as a unit. Then followed "internal alterations" to an existing building being a "lunch room and truck shed" on lots 7, 8, 9, 10 and 11 in section AF (IDA No. 563/73, referred to in BA No. 499/73), approved on 25 September 1973. Again, the site of these works appears from the plans to be within lot 8 in section AF, but reference to lots 7-11 again confirms that both the respondent and the council regarded these lots as a unit. 35 "Alterations to the factory" (BA No. 191/75), culminating in the addition of a partition and window and door openings were approved on 1 May 1975, but it is not clear from the plans precisely where on the land this work was. Lastly, on 31 July that year, a "new boiler house" was consented to pursuant to IDA No. 95/75 which was referred to in BA No. 365/75. The application and the consent refer to lot 1, but the plan shows it as being in the location of the centre of the complex. Such consent acknowledges the "[c]urrent [c]ondition and [i]mprovements [e]rected [t]hereon" as "chicken processing and packaging works" and relevantly, acknowledges the "[u]se… of [p]remises" as a "chicken processing and packing plant", commencing in 1966. Consents and approvals granted during the currency of the Tamworth Planning Scheme Ordinance 1979 36 There were no consents issued under TPSO 1979. Two building approvals, however, were granted to the respondent. These were in relation to "proposed alterations to [the] existing processing plant building" resulting in new window and door openings at the Out Street frontage (BA No. 796/80) which were approved on 25 November 1980; and "proposed alterations to Baiada processing plant", namely a "new loading dock" on lots 1, 2, 3 and 4 in section AF (BA No. 863/84), but which appears from the plan, however, to be on the site of lot 10 in section AF approved on 14 November 1984. None of these building approvals appear to involve any additional use or change of use. Consents under the Tamworth Local Environmental Plan 1985 37 Although not a development consent, a building approval (BA No. 386/85) was granted on 31 May 1985 in relation to "amenities to [the] factory (internal)". The plans show that this was for internal alterations to the existing garage structure on the site of lot 11 in section AF. 38 Five further development consents were granted under Tamworth LEP 1985 in relation to the subject land. The first, DA No. 105/86, described the use of the building proposed to be erected as a "processing chicken area" at No. 1 Out Street. Further, the resultant notice of determination dated 16 October 1986, which granted consent operating from 14 October 1986, described the work as "refurbish[ment of] chicken packing area at existing premises". Such work involved the demolition of part of the processing area on lot 8 in section AF and its replacement with a new and upgraded processing section, which included chilling and packing rooms as well as a loading bay. The consent nevertheless states that it applies to "lots 7/9 Out Street and 10/11 In Street", which again appears to be an acknowledgement by the council that all of these lots were regarded as a unit. No condition relating to the number of chickens processed or staff employed was imposed by the council. 39 On 8 January 1987, DA No. 158/86 was approved "to erect additional office space on sec. AF, lots 7/9 and 10/11". The consent was subject to conditions, none of which related to the functioning of the chicken processing operation. Related BA No. 59/87 and BA No. 250/87 were withdrawn on 5 August 1987 and 12 October 1987 respectively. 40 On 21 October 1987 DA No. 108/87 (referred to in BA No. 635/87), proposing to change the use of an adjacent service station on lot 6 in section AF to office use was granted to the respondent. Again, no limitation was placed upon the number of chickens to be processed or staff employed in the respondent's operations. 41 The conversion of an existing storeroom area on lots 10 and 11 in section AF to amenities, including new toilets, was approved (DA No. 172/88, referred to in BA No. 167/89) unconditionally on 22 December 1988. This building work was undertaken to provide better staff facilities. 42 BA No 220/89, involving an "addition to [an] existing factory of a roofed dock area" was approved on 4 April 1989 without the imposition of any condition relating to the operation of the building as a chicken processing plant. The plans show this as being in the middle of the complex. Likewise, BA No. 493/92 for work involving "amenities to [an] existing building" on lot 5 in section AF was approved on 14 July 1992 with no conditions as to the capacity of the chicken processing plant, or the number of plant employees. This was on the former Clark Motors site which adjoins the former service station on lot 6, referred to in par [40] above. This work provided two showers, two water closets and a kitchen. 43 The final development consent issued pursuant to Tamworth LEP 1985 was granted on 18 May 1993. Such consent allowed for the "erection of a Building for the Storage of Modular Live Bird (Poultry) crates, a Weighbridge and a Waste Water Treatment plant" on lot 1 in deposited plan 81692 and lots 10 and 11 in deposited plan 975058. Condition 1.4 of the consent to DA No. 7/93 required the provision of car parking for 37 cars on lot 1 in deposited plan 81422, land known as Varley Park. The reason for the condition was said to be to ensure that adequate parking facilities be provided commensurate with the demand likely to result from the proposed development. In furtherance of such condition the council relinquished its lease over Varley Park to allow the respondent to lease the area from the State Rail Authority for use as a car park. There were no other limiting conditions imposed upon the grant of consent to this particular development application. Associated BA No. 247/93, for "additions to factory" including a "live bird crate store and water treatment plant" on lot 10 in deposited plan 975058 was approved on 27 May 1993. 44 Lastly, BA No. 602/93 was approved for the respondent's operation on 7 September 1993. The proposed work was for a "facility block" on lot 20 of deposited plan 829908 at In Street. It is not clear from the approved plans precisely where this building is or where lot 20 is, or whether it is even on the subject land. I have ignored it for the purpose of the conclusions to which I came. Consents and approvals granted during the currency of Tamworth Local Environmental Plan 1996 45 Under the Tamworth LEP 1996, the first development consent granted for the subject land was in relation to DA No. 81/96 (referred to in BA No. 279/96). A "new raised level ice making room" on the roof of an existing building situated on the now consolidated lot 24 of deposited plan 832149 was approved on 4 July 1996. None of the conditions imposed limit the operation of the chicken processing plant or the number of staff to be employed by the operation. 46 DA No. 122/97 (referred to in BA No. 255/97, approved on 20 August 1997) was consented to on 19 August 1997, for a "feather processing unit" on the consolidated lot 24 in deposited plan 832149. Pursuant to this work, "a water extracting bowstrainer unit above [the] feather bin" was installed. This work facilitated a reduction in the amount of wastewater by enabling recycling of water used in the feather extraction process. No consent conditions were imposed which relevantly limit the number of chickens processed or staff employed by the respondent. The development application plans as approved also show the use of lot 5 (the Clark Motors site) as part of the respondent's existing processing works. 47 BA No. 67/98 was approved on 4 March 1998 involving a "proposed extention to Baiada Poultry" in the form of an "awning" on lot 24 in deposited plan 832149. No condition imposed restricts or limits the poultry-processing operation. 48 Finally, the most recent relevant development application lodged by Baiada, DA No. 152/99, was consented to by the council on 14 October 1998. This development consent was for "additions to an existing industrial building (chicken chiller, foot processing room and electrical room) and upgrade of existing shop front" on lot 24 in deposited plan 832149. The approved plans of the additions show a 5.6 metre wide extension along one side of the existing factory building on the former lot 7 in section AF, such additions containing a chiller room, a foot processing room and an electrical room. The consent was granted subject to conditions, one of which is as follows: 1.1 The development must be carried out in accordance with the Development Application and accompanying plans, drawings and other documents as amended by conditions of this consent. 49 By virtue of condition 1.1 in the notice of determination, the terms of a letter from Dengate Constructions dated 7 October 1998, which accompanied the development application lodged with the council, is thereby imported into the development consent. This letter relevantly states as follows: The proposed extensions to the factory are not being constructed to increase production but to improve the product. In regard to the environmental effects we list the following information: - a. No increase in production b. No additional staff … Conclusions 50 It can be seen from the history of the various approvals and consents that a number of conclusions can be made. At the commencement of interim development control on 7 April 1966 the respondent was lawfully using lots 7, 8, 9 and 10 in section AF and the buildings thereon for the killing and processing of poultry. There was no limit on the number and quantity of birds processed or the number of employees engaged in the business. The lawfulness of such use was preserved by the proviso in s 342U(4) of the LG Act 1919 (noted in par [15] above). Moreover, the uses of the various buildings on the four lots appear to have been integrated with one another, so that the four lots may be regarded as a unit. There is no evidence of the purpose of the dwelling erected on lot 11. 51 On the commencement of the EP&A Act on 1 September 1980 there had been a number of interim development consents granted for a variety of buildings and uses. As noted above, the various references in the applications for consent (and in the consents themselves) to lots 7 to 9 in section AF, and later to lots 7 to 11 in section AF, confirms that both the respondent and the council regarded the whole of the respondent's land as a unit, with the use of the various parts or components being interdependent and none of which could be used in isolation. None of the interim development consents impose a limit on the number or quantity of birds processed or the number of persons to be employed in the business. The lawfulness of the uses which were the subject of the interim development consents is preserved by s 109B of the EP&A Act, since the interim development consents are taken to be development consents for the purposes of the Act as explained in pars [10] to [12] of this judgment. 52 After the commencement of the EP&A Act a number of development consents were granted under the Tamworth LEP 1985 and, later, under the Tamworth LEP 1996. With the exception of the last development consent granted on 14 October 1998, to which I refer below, none of the consents impose any limit on the number or quantity of birds processed or the number of persons to be employed in the business. As with the interim development consents, lots 7 to 11 in section AF were all treated as a unit, it being self-evident that the various buildings and uses were interdependent. This approach was reinforced by the consolidation of these lots into a single allotment, lot 24 in deposited plan 832199. Although there is no direct evidence of this fact, it can be safely assumed that the council consented to the consolidation of those lots, otherwise the deposited plan could not have been registered. 53 Consent was also granted for the use to extend beyond what is now lot 24. I refer, firstly, to the consent of 21 October 1987 for the change of use of the former service station on lot 6 to an office; and secondly, to the condition of the development consent of 18 May 1993 requiring the provision of car parking on lot 1 in deposited plan 81422 (the former Varley Park) in accordance with the details indicated on the submitted plans. It cannot be suggested that the use of this land in accordance with the condition is unlawful (Boral Resources (NSW) Pty Ltd v Wingecarribee Shire Council (2003) 124 LGERA 90). I observe, however, that there does not appear to be any development consent for the use of the former Clark Motors site, lot 1 in deposited plan 799461. There is no evidence as to what use this site is being put. 54 As I have observed, it is self-evident that the various buildings and uses which were the subject of the development consents, as with the interim development consents, are interdependent; and the consent authority (Tamworth City Council) appears to have properly regarded the respondent's holdings as a whole entity. That is to say, the land was at all relevant times considered, for all practical purposes, as a unit. This is consistent with the approach of the Court (See, for example, Armstrong v Ashfield Municipal Council (2002) 124 LGERA 189, Mona Vale Pty Ltd v Pittwater Council (2003) 124 LGERA 449 and Moore Development Group Pty Ltd v Pittwater City Council [2003] NSWLEC 130). 55 Both the various interim development consents and the various development consents have the benefit of s 109B of the EP&A Act. Moreover, by dint of sub-s (2)(c) of s 109B, none of these consents are subject to the limitations and restrictions set out in s 109(2), such as the restriction or limitation against any enlargement or expansion or intensification of the use. 56 As can be seen from the history of consents recited above, a large number of consents were granted for the use of every part of the respondent's land, other than the former Clark Motors site. Those consents are for cooling tower structures, various amenities facilities, a number of loading docks, administrative offices, an engine room, cool room, lunch room, truck shed, boiler house, chicken packing area, chilling room, live bird storage space, weighbridge, water treatment plant, a car park on the former Varley Park, an ice making room, a feather processing room, a chicken chiller and foot processing and electrical rooms. As I have previously observed, with the exception of the consent granted on 14 October 1998, none of these consents limit or restrict in any way the number or quantity of birds killed and processed or limit the number of employees engaged in the business. 57 I return to the last development consent, granted by the council on 14 October 1998. As noted in pars [48] and [49] above, condition 1.1 of the consent states that the development must be carried out in accordance with the development application and accompanying plans, drawings and "other documents". One of the accompanying documents was the letter the relevant terms of which I have set out above. The applicant contends that as a consequence the respondent is at least limited to the level of production and the number of staff as at the date of that consent, 14 October 1998. The letter, however, refers only to "the proposed extensions to the factory" as not being constructed to increase production but to improve the product. The consent must be seen as being limited to that particular development application. That is to say, the combined effect of the letter together with condition 1.1 of the consent is to limit the use of the chicken chiller, foot processing room and electrical room to the level of production as at 14 October 1998 and so as not to require any additional staff to operate those particular facilities. 58 Although the various interim development consents and development consents (other than the consent of 14 October 1998) do not limit the level of production or the number of persons employed in the business, it does not follow that the whole of the respondent's operation may be carried out in an unlimited way. It is only those uses which are the subject of various consents which may be carried on in an unlimited way. None of the various consents, however, relate to the core killing and processing operation which already existed: they only relate to ancillary activities. The core poultry killing and processing operation is thus not governed by s 109B of the EP&A Act, since it is not the subject of any interim development consent or any development consent. The basic killing and processing activities are thus governed by s 109 and, in particular, sub-s (2) of s 109 of the EP&A Act. Whilst s 109(1) allows the continuance of the use of poultry killing and processing, sub-s (2)(c) of s 109 provides that nothing in sub-s (1) authorises "any enlargement or expansion or intensification" of such use. Sub-section (2) of s 109 does not, however, preclude the consent authority from giving consent to an enlargement, expansion or intensification of a use. 59 The various consents allow the enlargement or expansion of the various ancillary uses, which would otherwise be proscribed by s 109(2)(c). But none of the consents allow any intensification of the use, particularly the pre-existing killing and processing activities. 60 As noted in par [6] above, sub-s (2) was added to s 109 on 3 February 1986 by Act No. 228 of 1985. The sub-section does not have retrospective operation: it only prohibits intensification after that date (King v Lewis (1995) 88 LGERA 183 at 197, per Kirby ACJ). It follows that the killing and processing of poultry must be limited to the number or quantity killed and processed as at 3 February 1986. A comparison of production levels is an acceptable way of measuring whether there has been an intensification within the meaning of s 109(2)(c) (King v Lewis (1991) 74 LGRA 362 at 373, per Cripps J, and on appeal at 88 LGERA 183 at 195, per Kirby ACJ). The evidence discloses that the level of production on about 3 February 1986 was 91,350 live kilograms per week (Exhibit K). The evidence also discloses that the number of employees engaged in the business on or about 3 February 1986 was between 34 and 40 (Exhibit K). 61 Subject to any discretionary considerations the applicant would be entitled to the appropriate declaratory and injunctive relief. It is appropriate that the matter be now referred to the Registrar to set a date for the hearing of evidence and submissions on the appropriate exercise of the Court's discretion. I hereby certify that the preceding 61 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 24 July 2003 ********** 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.