Land and Environment Court of New South Wales CITATION : Liauw v Gosford City Council [2004] NSWLEC 72 APPLICANT: Adi Layanto Liauw PARTIES : RESPONDENT: Gosford City Council FILE NUMBER(S) : 10844 of 2003 and 11130 of 2003 CORAM: Lloyd J KEY ISSUES: Development Consent :- consent to use land for a "Rural Industry" - "Rural Industry" not a permissible use of the land - bottling of bore water defined as "Rural Industry" - consent cannot be lawfully modified Environmental Planning and Assessment Act 1979 s 76B and s 96 Factory Shops and Industries Act 1962 s 4(2) LEGISLATION CITED: Environmental Planning and Assessment Model Provisions 1980 cl 4 Gosford Local Environmental Plan No. 22 cl 6 and cl 8 State Environmental Planning Policy No. 30 - Intensive Agriculture cl 3, cl 4 and cl 9 CASES CITED: Australian Native Landscapes Pty Limited v Warringah Shire Council, NSWLEC, Bignold J, 8 February 1989, unreported; C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 DATES OF HEARING: 14/01/2004 EX TEMPORE 01/14/2004 JUDGMENT DATE : APPLICANT: Mr C J Leggat (barrister) SOLICITORS: Spiegel & Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr P J Donnellan SOLICITORS: P J Donnellan & Co JUDGMENT: - 8 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10844 of 2003 & 11130 of 2003 Lloyd J 14 January 2004 ADI LAYANTO LIAUW Applicant v GOSFORD CITY COUNCIL Respondent EX TEMPORE JUDGMENT HIS HONOUR: 1 This is the hearing and determination of three preliminary questions of law arising in proceedings in class 1 of the Court's jurisdiction, being an appeal against the respondent council's refusal of an application to modify a development consent pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The matter has been set down for hearing before a commissioner tomorrow. Normally when one raises questions of law such as those that have been raised in the present case, I would prefer to reserve judgment, particularly in light of the thorough submissions that have been advanced by both parties in the present case. However, since the matter is due to proceed tomorrow before a commissioner, it is necessary to deliver judgment now, although perhaps in not as complete a form as would otherwise be the case. 2 The three preliminary questions raised are as follows: (1) Whether the development consent No. 14697/2002 dated 21 March 2002 is consent to use the land known as lot 1232 in deposited plan 873171, Chivers Road, Somersby ("the land") for a "Rural Industry" as those words are defined in the Gosford Local Environmental Plan No. 22 ("the LEP No. 22")? (2) If the answer to question 1 is in the affirmative, whether a "Rural Industry" was a permissible use of the land as at 21 March 2002 having regard to the provisions of the LEP No. 22? (3) If a "Rural Industry" was not a permissible use of the land as at 21 March 2002 whether, in the events which have happened, the development consent is able to be lawfully modified under s 96 of the EP&A Act? 3 The relevant facts may be briefly described. The land the subject of these proceedings is known as lot 1232 in deposited plan 873171, Chivers Road, Somersby. The land is owned by the applicant and currently has upon it a building of approximately 3000 square metres used for bottling water, together with four water tanks, a car park, a bore and a pump. 4 The council granted development consent on 21 March 2002 for an industrial building - water bottling facility on the land. The consent was granted subject to a number of conditions. On 23 October 2003 the council refused consent to an application pursuant to s 96 of the EP&A Act 1979 to modify the development consent by including a bore and ancillary equipment on site. Under the terms of the existing development consent, it seems that the source of water was to be imported onto the site. It is now apparently intended to produce at least some of the water on-site by means of the bore. 5 The LEP No. 22 applies to the land. Under that instrument the land is zoned 4(a1) Industrial. Clause 6 of the LEP No. 22 adopts the Environmental Planning and Assessment Model Provisions 1980 ("the Model Provisions"), other than the definitions of "car repair station" and "gross floor area": see clause 4(1) of the Model Provisions. It follows that the definitions set out in the Model Provisions apply. 6 Clause 8 is in Part II of the LEP No. 22, which is headed "General Development Control". Clause 8(1) is as follows: Subject to clause 6 and Part III, the purposes for which development may be carried out only with the consent of the council on land within each of the zones specified in Column I of the Table to this clause are respectively shown opposite thereto in Column II of that Table. 7 Sub-clause (2) of cl 8 states: Except as provided in subclause (1), development is prohibited on the land to which this plan applies . 8 In the table to cl 8 under Column I, the Industrial (a1) zone is listed; and opposite that in Column II a number of uses are listed as being permissible with consent. Those uses relevantly include "industries (other than extractive industries and offensive or hazardous industries)". 9 As I have said, the current application pursuant to s 96 of the EP&A Act seeks to modify the existing development consent for a bottling facility to include the sinking of a bore and ancillary equipment. It is convenient to first refer to the relevant definitions in the Model Provisions. Those definitions are as follows: extractive industry means: (a) the winning of extractive material, or (b) an undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on, and includes any washing, crushing, grinding, milling or separating into different sizes of that extractive material on that land. extractive material means sand, gravel, clay, turf, soil, rock, stone or similar substances. 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. light industry means an industry, not being an offensive or hazardous industry, in which the processes carried on, the transportation involved or the machinery or materials used do not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil, or otherwise. offensive or hazardous industry means an industry which, by reason of the processes involved or the method of manufacture or the nature of the materials used or produced, requires isolation from other buildings. rural industry means handling, treating, processing or packing of primary products and includes the servicing in a workshop of plant or equipment used for rural purposes in the locality. 10 I return to the definition of industry. It will be seen that par (a) of that definition is "any manufacturing process within the meaning of the Factory Shops and Industries Act 1962". Although the Factory Shops and Industries Act 1962 has been amended so that there is no longer a definition of manufacturing process in that Act, the former definition of manufacturing process continues to apply to the definition of industry in the Model Provisions. In another way, although the definition in the Factories Shops and Industries Act 1962 of "manufacturing process" has been repealed, it still expressly applies when considering the meaning of the word "industry" in the Model Provisions. That definition is 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, and includes any handicraft or process declared by the Governor, pursuant to this Act, to be a manufacturing process. 11 The first question is whether or not the use that both exists and is proposed on the land is an industry as defined, and is therefore the use which is permissible with consent in the zoning table pursuant to cl 8 of the LEP No. 22. Prima facie, the answer to that question is yes, the reasons being that it would come within par (a) of the definition of "industry", being a process in or incidental to assembling, preparing or adapting any article or part of an article for trade or sale or gain. 12 However, in considering the definition of "industry", State Environmental Planning Policy No. 30 – Intensive Agriculture ("SEPP No. 30") is also relevant. By clause 3 of SEPP No. 30 that Policy applies to the State, but does not apply to certain activities within the meaning of Pt 5 of the EP&A Act. By clause 4 of SEPP No. 30, in the event of an inconsistency between SEPP No. 30 and another environmental planning instrument whether made before or after the Policy, SEPP No. 30 prevails to the extent of any inconsistency. Relevantly, for the present case, cl 9 of SEPP No. 30 is headed "Rural industries" and is as follows: A reference in an environmental planning instrument, whether made before or after the commencement of this clause, to industry does not include a reference to rural industry. 13 It is submitted on behalf of the applicant that cl 9 of SEPP No. 30 must be limited only to that Policy. I am unable to accept the submission. Clause 9 is not expressed to be limited only to SEPP No. 30. It is a policy that applies to the State by virtue of cl. 3. It is a policy which applies where there is an inconsistency between it and another environmental instrument and it prevails to the extent of the inconsistency. It would apply to the use of the word "industry" as used in the LEP No. 22. 14 It follows, therefore, that if the use in the present case, both existing and as proposed to be modified, is that of a rural industry, then it is not an industry for the purpose of the LEP No. 22. This in turn depends upon whether it can be said that the activity of pumping bore water, or the subsequent bottling of bore water is or amounts to the handling of a primary product. 15 I have heard submissions as to whether or not ground water is a primary product. There is no direct authority on the point. The nearest case that comes to addressing the question is a judgment of Bignold J in Australian Native Landscapes Pty Limited v Warringah Shire Council (NSWLEC, 8 February 1989, unreported) in which his Honour held that sand, soil and rock could be defined as primary products. 16 Some assistance is gained from the dictionary definition of both primary industry and primary producer. According to the Macquarie Dictionary (Revised 3rd ed, 2001), primary industry is defined as "any industry such as dairy farming, forestry, mining, etc., which is involved in the growing, producing, extracting, etc., of natural resources" and primary producer is "1. one who works in a primary industry as a farmer, a fisher, etc., 2. a business or industry devoted to primary production". 17 The Macquarie Dictionary also includes the following definition of the meaning of the word "primary": "5. of or relating to the production of naturally occurring foods as meat, grains, fish etc., or of naturally occurring things as wool, cotton, etc: a primary industry…". A primary product is an original product. For example, in forestry the cutting down of trees which may be naturally growing on the land is a primary industry. As Bignold J held in the Australian Native Landscapes case, sand, soil and rock could be defined as primary products. So too, in my opinion, can it be said that ground water is a primary product. 18 It follows that the use in the present case, both existing and proposed use as modified, is that of rural industry. A rural industry is a use which is prohibited pursuant to the Table to cl 8 of the LEP No. 22. 19 If it could be said that the use is one which falls within the definition of "industry" (a permissible use), that does not assist the applicant if the use also falls within the definition of "rural industry" (a prohibited use). Consent cannot be granted to a use having the character of a permissible purpose if it also has the character of a prohibited purpose (C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 271 per Hope JA, and at 275 per Reynolds JA). 20 This conclusion is not, however, the end of the matter. It resolves questions 1 and 2 of the three preliminary questions of law sought to be raised. The third question must also be resolved. That is, if a rural industry was not a permissible use of the land as at 21 March 2002, whether the development consent is able to be lawfully modified pursuant to s 96 of the EP&A Act. In my opinion, the answer to that question is rather simple. 21 What is presently sought is, in effect, an extension of a development which is prohibited. In that instance s 76B of the EP&A Act applies. That section is as follows: If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on the land with or without development consent, a person must not carry out the development on the land. 22 That is to say, what is now sought by the application for modification is prohibited. That which is sought by the application for the modification is unlawful. There is, therefore, no power to allow the proposed modification. The answers to these questions means that it is not necessary for the hearing on the merits to proceed. 23 As I have said, I would have preferred to have reserved judgment and given more complete reasons than these, but pressures of time mean that that has not been possible. The exhibits may be returned. 24 DONNELLAN: Would your honour reserve the issue of costs to enable me to have some discussions with my learned friend about that? 25 HIS HONOUR: I reserve the question of costs. 26 The preliminary questions of law are answered as follows: - Question 1 Whether the development consent No. 14697/2002 dated 21 March 2002 is consent to use the land known as lot 1232 in deposited plan 873171, Chivers Road, Somersby ("the land") for a "Rural Industry" as those words are defined in the Gosford Local Environmental Plan No. 22? Answer: Yes. Question 2 If the answer to issue 1 is in the affirmative, whether a "Rural Industry" was a permissible use of the land as at 21 March 2002 having regard to the provisions of the Gosford Local Environmental Plan No. 22? Answer: No. Question 3 If a "Rural Industry" was not a permissible use of the land as at 21 March 2002 whether, in the events which have happened, the development consent is able to be lawfully modified under s 96 of the Environmental Planning and Assessment Act 1979? Answer: No. I hereby certify that the preceding 26 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 14 January 2004 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.