Land and Environment Court New South Wales Medium Neutral Citation: Kang v Blue Mountains City Council [2011] NSWLEC 150 Hearing dates: 27 May 2010, 28 May 2010 Decision date: 06 September 2011 Jurisdiction: Class 4 Before: Craig J Decision: 1. Summons dismissed. 2. Applicants to pay the respondent's costs unless within seven days, a notice of motion is filed seeking to argue costs. 3. Exhibits may be returned. Catchwords: ENVIRONMENT & PLANNING - environmental planning - planning instruments - extraction of groundwater from land - whether characterised as a "home business" and permissible without consent under the Blue Mountains LEP 2005 - activity does not fall within definition - necessary for business activities to be the use of identified buildings on the land as commercial premises - limitations expressed in planning instrument directed to physical structures in which "home business" is carried out - whether orders made in earlier decision should be discharged or varied pursuant to Uniform Civil Procedure Rules, r. 36.17 - activities now found to be permitted by planning law Legislation Cited: Blue Mountains Local Environmental Plan No. 4 Blue Mountains Local Environmental Plan 2005 Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979, s 97 Environmental Planning Policy No. 30 - Intensive Agriculture Interpretation Act 1987, s 6 Uniform Civil Procedure Rules, r. 36.17 Water Act 1912 Cases Cited: Ashfield Municipal Council v Armstrong [2003] NSWCA 353 Blue Mountains City Council v Waterland Blue Mountain Natural Water Pty Ltd [2007] NSWLEC 101 CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 Dow Jones& Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 Friends of Pryor Park Inc v Ryde Council [1995] NSWLEC 160 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Henderson v Henderson [1843] 3 Hare 100; 67 ER 313 Holidays-a-Float Pty Ltd v Hornsby Council (1992) 75 LGRA 127 Liauw v Gosford City Council [2004] NSWLEC 72 Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 Multistar Pty Ltd v Minister for Urban Affairs and Planning (No. 2) ; [2000] NSWLEC 242 Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411 Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Rahme v Commonwealth Bank of Australia [1991] NSWCA 230 Rogers v R [1994] HCA 42; (1994) 181 CLR 251 Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1 Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 Waterland Blue Mountain Natural Water Pty Ltd v Blue Mountains City Council [2006] NSWLEC 537 Category: Principal judgment Parties: Jun Sik Kang (First Applicant) Waterland Blue Mountain Natural Water Pty Ltd (Second Applicant) Blue Mountains City Council (Respondent) Representation: Mr A M Pickles (First and Second Applicants) Mr I J Hemmings (Respondent) Strathfield Law Solicitors (Applicants) McPhee Kelshaw Solicitors (Respondent) File Number(s): 41008 of 2009 Judgment 1The extraction and bottling of groundwater from and on land located in McLaughlin Avenue, Wentworth Falls ( the Land ) has been opposed by Blue Mountains City Council ( the Council ) for some years. Although then opposed by the Council, in February 2000 this Court granted development consent authorising the use of the Land both for the extraction of groundwater and for the bottling of that extracted water on site. However, by conditions then imposed, the operation of that consent was limited to a period of five years from the date of development commencement. In accordance with that condition, the consent lapsed in about October 2005. 2Notwithstanding the lapse of the consent, the extraction of water for bottling continued on the Land. Ultimately, that activity was restrained by permanent injunction granted in this Court by Jagot J on 13 February 2007. The order then made restrained the extraction and removal by pumping of groundwater from the Land "without consent". 3Since the grant of development consent by the Court in February 2000, the planning controls applicable to the Land have changed. Indeed, those changes were operative at the time at which the injunction was granted by Jagot J in February 2007. 4The applicants now intend to resume extraction of groundwater from the Land. By summons filed on 22 December 2009, they seek orders directed to the lawfulness of their proposal to resume that activity. They seek a declaration to the effect that, if carried out in the manner identified in the evidence, groundwater extraction from the Land constitutes a "home business" within the meaning of Blue Mountains Local Environmental Plan 2005 ( LEP 2005 ), having the consequence that development consent is not required so to do. They also seek an order setting aside or discharging the order made by Jagot J restraining them from conducting that activity without first obtaining development consent. 5The Council opposes the orders that the applicant seeks. It does so on two grounds, namely: (i) the development proposed by the applicant should be categorised as either "commercial premises" or "rural industry", both of which are prohibited forms of development on the Land under LEP 2005; and (ii) in any event, the applicants are estopped from maintaining their entitlement to set aside the order made by Jagot J and from maintaining the entitlement they assert by operation of the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. The Land 6The Land comprises a long rectangular lot in an old subdivision. It has a western frontage to McLaughlin Avenue of about 20 metres, a depth of 169 metres and a total area of about 3,398 square metres. It falls steeply from McLaughlin Avenue to a levelled and retained section of the site on which there are a number of ancillary buildings located. There is then a further slope or fall that continues to the eastern boundary where the Land adjoins the Blue Mountains National Park. 7The major improvements constructed on the Land comprise the following: (i) a single storey dwelling house located on the steeply sloping western portion of the site as it falls from McLaughlin Avenue; (ii) a double garage located on the levelled retained section of the site to the east of the dwelling and having a floor area of about 37 square metres; (iii) a double carport attached to the southern elevation of the garage; (iv) two colorbond garden sheds; (v) a bore and pump, partly enclosed in an aboveground concrete casing, located about 6.4 metres from the south eastern corner of the garage and having dimensions of about 1.5 metres x 1 metre; (vi) a cylindrical water storage tank, located to the north of the garage, having a capacity of about 7,000 litres, occupying an area of about 1.65 metres x 1.65 metres and connected by a pump and pipes to the bore; and (vii) a concrete driveway constructed along the southern boundary of the site between McLaughlin Avenue to the west and the garage to the east, together with a paved turning area and vehicle parking area alongside and to the east of the garage. 8Within the McLaughlin Avenue road reserve adjacent to the Land is constructed a levelled and retained hardstand area. This construction was approved by the Council. 9In March 2010, the New South Wales Office of Water issued to the first applicant and Haee Sun Choi a bore licence renewal certificate under s 115 of the Water Act 1912. That licence, which is expressed to be valid until 25 March 2015, authorises the extraction of groundwater through the bore on the Land. The purpose for which the water may be used is described in the licence as "Industrial (Mineral Water Extraction)". 10The bore licence is subject to a number of conditions. Included among them are: (i) condition (2) that requires the licensee to install an appliance to measure the quantity of water extracted from the Land, designating the type of appliance to be installed for this purpose; (ii) condition (4) by which the licensee is required to furnish to the NSW Office of Water in July each year a return showing the meter reading of the hours pumped and the extraction rate for each month during the previous twelve months; and (iii) condition (10) by which the volume of groundwater extracted in any twelve month period is not to exceed 0.7 megalitres. Planning controls 11The principal planning instrument presently controlling development on the Land is LEP 2005. It commenced on 7 October 2005. The western section of the Land having frontage to McLaughlin Avenue, is zoned "Living - Bushland Conservation" ( the Bushland Conservation zone ). The section of the Land to which this zone applies comprises about 1,082 m 2 or just under 32% of the total area of the Land. 12The eastern section of the Land which, as I have indicated, shares a common boundary with the Blue Mountains National Park, is zoned "Environmental Protection - Private". This section of the Land has an area of about 2,316 m 2 or a little over 68% of the Land area. Located on this section of the Land is an area of Blue Mountains Swamp, a significant vegetation community under LEP 2005. 13Clause 24 of LEP 2005 identifies the objectives for the Bushland Conservation zone. It does so in the following terms: " Living - Bushland Conservation zone The objectives for the Living - Bushland Conservation zone are as follows: (a) To allow for residential development in the form of single detached dwellings where this development is within the capacity of the environment to sustain such development and is undertaken in a manner that minimises impact on environmentally sensitive areas. (b) To preserve and re-establish native bushland in areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bushfire. (c) To permit only low density residential land uses and to retain large allotment sizes in fringe urban locations or locations that do not have reasonable access to services and facilities. (d) To allow a limited range of non-residential land uses only where these are conducted in association with a predominantly residential land use. (e) To ensure that the form and siting of buildings, colours, landscaping and building materials are appropriate for and harmonise with the bushland character of the locality. (f) To encourage the retention and re-establishment of native bushland along significant fauna corridors and in areas of high visual significance, including escarpment areas and along the Regional Transport Corridor." 14Land use within the various zones created by LEP 2005 is not controlled by the traditional land use tables. Rather, the LEP adopts a land use matrix system. Clause 32 of LEP 2005 relevantly provides as follows: "(1) Except as otherwise provided by this Division or Division 4 of Part 3 (Heritage conservation), development that: (a) is allowed without development consent, or (b) is allowed only with development consent, or (c) is prohibited, is specified in the land use matrix in subclause (6)." 15The matrix contained in subclause (6) then indicates, by reference to symbols specified in subclause (2), the forms of development that are permissible without consent, with development consent or that are prohibited in each zone. Unlike many conventional planning instruments where the zoning table specifically identifies only a limited number of development purposes that are either permissible or prohibited, providing a "catch all" provision for development purposes not falling within one of those categories, LEP 2005 leaves little room for those innominate purposes that would otherwise be caught by the "catch all" provision. That difference in LEP 2005 follows not only from the form that the land use matrix takes but also from subclause (5) of cl 32 which provides, subject to exceptions which are not presently relevant, that any development not identified in the land use matrix is prohibited. 16The land use matrix relevant to the Bushland Conservation zone indicates that development for the purpose of "home businesses" is development that is allowed without development consent. The expression "home business" is defined in the Dictionary to LEP 2005 in the following way: " home business means the use of a dwelling, or of a building erected on the same allotment as a dwelling, as commercial premises in association with a primarily residential land use, where the business: (a) is conducted by the permanent residents of the dwelling, and (b) has no more than 2 non-residents working within the dwelling or building at any one time, and (c) occupies or is conducted from a space that does not exceed 50 square metres, and (d) does not involve the parking of more than 1 business-related motor vehicle on or in the street fronting the site, excluding the owners' or employees' personal motor vehicles, and (e) either does not involve the provision of on-site parking for business-related motor vehicles or involves the provision of parking located to the rear of the dwelling or screened from view from the public street, and (f) does not involve the display or retailing of goods from the site, and (g) is within the capacity of existing service mains to cater for the proposed use, and (h) generates vehicular trips that are not greater than 30 trips on average in a 24 hour period (15 return journeys) and does not involve more than 1 visit per day from a delivery vehicle weighing more than 2.5 tonnes, and (i) will not generate traffic on a street that does not have available carrying capacity for the traffic, and (j) does not emit odours, fumes or other airborne emissions that can be detected beyond the property boundary and that may cause nuisance to surrounding residents who have reasonable expectations about their environment, and (k) does not adversely affect the amenity of the locality by way of noise that is greater than 5 dB(A) over the ambient noise level at the property boundary, and (l) does not interfere with the amenity of the locality by means of vibrations, smoke, vapour, steam, soot, ash, dust, waste products, grit or oil, or otherwise, and (m) does not involve the use of premises for prostitution." 17Having regard to the submissions made by the Council, it is necessary to note two further matters arising from the land use matrix in subclause (6) of cl 32. Development for the purpose of "commercial premises" is prohibited in the Bushland Conservation zone. "Commercial premises" are defined in the Dictionary to the 2005 LEP in the following way: " commercial premises means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere defined in this Dictionary." 18Development for the purpose of "rural industry" is neither addressed in the land use matrix nor is the expression defined in the Dictionary. The only comparable form of development that is so identified is "industries". Development for that purpose is prohibited in the Bushland Conservation zone. The term "industry" is defined in the Dictionary as follows: " industry means an activity involving manufacturing, assembling, altering, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, processing or adapting any goods or articles for commercial purposes and does not include an offensive industry or hazardous industry." Intended use of the Land 19The manner in which the applicants intend to carry out their activity of extracting mineral water on the Land is the subject of a Statement of Agreed Facts tendered before me, supplemented by a Statement of Environmental Effects prepared by their consultant planner Mr R J Chambers, whose affidavit evidence was read without objection. It is that evidence, shortly to be described, that informs the debate as to the proper categorisation of development for the purpose of LEP 2005. 20The second applicant will conduct the business of extracting mineral groundwater and removing it from the Land. The process will involve the following: (i) groundwater will be extracted utilising the existing licensed bore and pump that is concrete encased; (ii) the pump will be operated from a switch located within the garage and will be operated under the control of the first applicant; (iii) groundwater will be pumped directly to the 7,000 litre storage tank presently located on the Land; (iv) the maximum volume of groundwater extracted will be approximately 2,000 litres per day or 0.7 megalitres per annum so as to accord with the license conditions imposed by the NSW Office of Water; (v) several times each week, but no more than once per day, water will be pumped from the storage tank to a water tanker truck parked on the hardstand area located within the road reserve of McLaughlin Avenue; (vi) the pump used for this purpose is located within one of the existing sheds standing to the east of the dwelling on the Land; (vii) stored water would be pumped from the tank to the road tanker via a hose pipe to be connected to the parked truck; and (viii) pumping of the extracted water from the storage tank to the parked tanker truck will take place between 10.00am and 4.00pm. 21The first applicant will reside on the Land. A room within the existing dwelling, having an area of about 9 m 2 , will be used as an office from which the first applicant will carry out administrative functions associated with the extraction of water and the sale of that water by the second applicant. There will be a non-resident employee of the second applicant who will assist in activities associated with the extraction of water from the Land and transportation of that water using the tanker truck. 22No bottling of water will take place on the Land. The water extracted is to be taken to a treatment and bottling plant at a different location. Further, the first applicant states that "there will be no display or retailing of goods on the site". Relevant history 23Two issues arising in the proceedings make it necessary to recite the recent history of development on the Land. That history is relevant to the applicants' claim for discharge of orders made by Jagot J and also relevant to the Council's estoppel argument founded upon the decision in Port of Melbourne Authority v Anshun Pty Ltd . The 2000 development consent 24On 7 February 2000, this Court allowed an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ( the EPA Act ) granting development consent for the extraction of water and bottling of that water on the Land. At the time, the Land was zoned Residential 2(a1) under Blue Mountains Local Environmental Plan No. 4 ( LEP 4 ). Development for the purpose of a "home industry" was permissible on land so zoned and the development then approved fell within that category of development. 25The development consent then granted contained two conditions of present relevance. First, production was limited to a maximum of 2,000 litres of water per day. Second, the consent was limited in its operation to a maximum of five years "from the date of commencement of the development." That condition (condition 2) also stipulated that at the end of the five year period "it will be necessary for the applicant to obtain further consent for the development to continue." 26The date upon which development commenced in accordance with that consent is not stated. However, it is agreed between the parties that the consent lapsed in either October or November 2005. The 2005 development application 27In August 2005, the second applicant lodged a development application with the Council. In terms, it sought to make "permanent" the 2000 consent but added that it wished to increase the extraction and bottling capacity to 5,000 litres per day. The accompanying statement of environmental effects described the development as being permissible because it was a "home industry". 28As the Council had not determined the application by early October 2005, the second applicant appealed to the Court pursuant to s 97 of the EPA Act. That appeal had not been determined when, in August 2006, an application was made by motion to amend the development application so as to reduce the daily production to 2,000 litres per day and to remove the bottling process from the application so that the development then proposed would be confined to extraction of water, storage and removal from the Land by a tanker vehicle. 29The notice of motion seeking amendment was dismissed by Pain J on 28 August 2006 ( Waterland Blue Mountain Natural Water Pty Ltd v Blue Mountains City Council [2006] NSWLEC 537). Her Honour declined to allow the amendments sought because they had the effect of changing the manner in which the development would be categorised under the provisions of the relevant planning instrument. In that context her Honour said (at [15]): "It was conceded in reply by counsel for the Applicant that the development now sought was appropriately characterised as a rural industry under the LEP. It was also agreed that a new SEE and amended plans would need to be filed if the application to amend is granted. The parties agree that rural industry is permissible with consent under the LEP 4 which applies to this development application under the savings and transitional provisions in the Blue Mountains LEP 2005. Under the 2005 LEP the extraction of water is prohibited." 30LEP 2005 commenced on 7 October 2005. By operation of cl 3, LEP 4 then ceased to apply to the Land. However, by cl 6(4) of LEP 2005, undetermined development applications as at 7 October 2005 were to be determined as if LEP 4 continued to apply. Thus, her Honour's reference to "the savings and transitional provisions" in LEP 2005. 31In October 2006 the appeal instituted in October 2005 was discontinued, with the consent of the Council. 2006 Class 4 proceedings 32Notwithstanding the lapse of the 2000 development consent and discontinuance of the 2005 appeal, the second applicant continued to extract water from the Land and transport it from the site. Its actions in so doing were the subject of a notice issued under s 121B of the EPA Act requiring their cessation but the requirements of that notice were not observed. 33On 29 June 2006 the Council commenced proceedings in Class 4 of this Court's jurisdiction seeking both declaratory and injunctive relief. An ex parte injunction was sought and granted on 5 July 2006. 34The final hearing of the proceedings took place before Jagot J on 13 February 2007. The respondents to those proceedings (the present applicants) were represented by counsel. It was submitted on their behalf that the making of final orders was unnecessary because they had then ceased extracting groundwater on the Land and had only continued after the lapse of the 2005 consent on the basis of advice given to them by a consultant planner. The advice given was to the effect that they were entitled so to do pending determination of their then undetermined development application. 35Her Honour did not accept the submission and determined the proceedings generally in the manner sought by the Council ( Blue Mountains City Council v Waterland Blue Mountain Natural Water Pty Ltd [2007] NSWLEC 101). In the course of delivering judgment, her Honour noted (at [4]): "[Counsel], appearing for the respondents, concedes that the activities that were being carried out on the property at the material time, required but did not have development consent under the relevant environmental planning instruments, and it now appears that under the Blue Mountains Local Environmental Plan 2005 those activities would in fact be prohibited from being carried out." 36Following consideration of the evidence and submissions tendered and made before her, Jagot J made the following orders: "(1) Declares that the respondents have carried out development (being the extraction and removal by pumping of groundwater) (the "development") on the property at 15 McLaughlin Avenue, Wentworth Falls ("the site") without having obtained the development consent that is required by section 76A(1) of the Environmental Planning and Assessment Act 1979 for the carrying out of that development. (2) Orders that the respondents, their servants and agents be and are restrained forthwith from carrying out the development, without consent, on the site. (3) Orders the respondents to pay the applicant's costs of the proceedings, as agreed or assessed. (4) Orders that the exhibits be returned." 37On 9 February 2007, that is four days prior to the final hearing before Jagot J, Lawrence Winnacott, a different consultant planner from the planner earlier retained by the present applicants, wrote to the Council seeking to discuss the resumption of water extraction on the Land to be conducted in a manner that in many aspects was similar to that presently proposed ( the Winnacott letter ). It was accompanied by what was described as a "pre-lodgement advice application form" and indicated a preparedness to pay the Council's fee of $350 at the time of a suggested meeting. The Winnacott letter requested the meeting "to obtain Council's advice in relation to the proposal to conduct a home business on the subject property". 38It seems that shortly after its receipt, the Winnacott letter was provided by the Council to its legal advisors. No response was provided to the letter until 18 May 2007. It is not suggested that either the letter or its substance was raised in the course of the hearing before Jagot J. Characterisation 39The characterisation of development for the purpose of determining its permissibility in accordance with an environmental planning instrument is an essential task to be undertaken when considering any proposal for development. That task almost always involves questions of fact and degree; it often involves, as in the present case, the proper interpretation of the relevant environmental planning instrument ( Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [57]). Undertaking the task by applying the elements of a proposed activity to a particular form of development defined in an environmental planning instrument can often yield a result about which minds may reasonably differ ( Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 at 384). The latter proposition aptly describes the present case. Nonetheless, the task must be essayed. 40I have earlier recited the definition of "home business" contained in LEP 2005 as being the form of land use relied upon by the applicants to sustain their application for a declaratory order. The essential elements of development that is correctly categorised as being a "home business" are that the proposed activity - (i) is the use of a dwelling or of a building located on the same allotment as that dwelling; (ii) the purpose of use of either or both such buildings as "commercial premises"; (iii) the use for that purpose must be one associated with a primarily residential use; and (iv) the use must be limited in the manner identified in paragraphs (a) to (m) of the definition. 41Elements (i) and (ii) as I have identified them, seem to me to focus upon a building as being the place within which the essential elements of the activity are to be conducted. So much follows not only from the reference, in terms, to a co-located "building", but also from the requirement that the purpose of the activity be the use of a "dwelling", the definition of which in the Dictionary limits the concept to a "room or suite of rooms" having identified qualities or functions. 42There are two further matters that, to my mind, reinforce the necessity for essential elements of the activity to involve the use of a building. First, by definition the activity, must involve "the use" of either or both of the two nominated buildings as "commercial premises". The Dictionary definition of the latter term identifies it as involving a building used as an office or for other business or commercial purposes. While the same definition also uses the word "place" as an alternative to "building", when translated into the chapeau to the definition of "home business", it makes no sense, in that context, to give the word "place" a meaning that allows "the office", business or other commercial purpose to be focussed upon exploitation of the Land upon which the dwelling or other associated building is located rather than the buildings themselves. 43Expressed differently, whatever may be the broader context in which the definition of "commercial premises" may be applied, in the present context, the structure of the chapeau to the definition of "home business" makes tolerably clear that the focus of the office or business activity is to be within one or both of the identified buildings. The limitation or qualification of a defined expression to the particular context in which it is used when interpreting an environmental planning instrument involves conventional legal reasoning ( Interpretation Act 1987, s 6; Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [40]). 44The second matter supporting a requirement that the focus of an activity said to constitute a "home business" be the activity conducted within a building is paragraph (b) of the constraints expressed within the definition itself. That paragraph stipulates that no more than two non-residents work " within the dwelling or building at any one time" (emphasis added). 45While some of paragraphs (a) to (m) of the definition of "home business" address functions of the business activity that have an impact external to the dwelling or associated building, that fact does not detract from the development purpose as one confined to an undertaking within a building. Matters such as parking (paragraph (e)), vehicular trip generation and delivery vehicle restrictions (paragraph (h)), street traffic generation (paragraph (i)), odour omissions (paragraph (j)) and noise generation (paragraph (k)) are all directed to matters that are incidental to the business purpose being conducted within a "dwelling" or associated building erected on the same allotment of land. 46With these observations in mind, it is necessary to return to a consideration of the applicants' proposed activities by reference to the chapeau to the "home business" definition. Critically, the development purpose must be identified. So also must a determination be made as to whether that purpose is being implemented by use of the dwelling or other building or buildings on the Land. 47The identification of the development purpose is, in the present case, uncontroversial. It is that which is stated on behalf of the applicants in the evidence and as framed in the form of declaratory order that they seek. In short, that purpose is the use of the Land for the extraction of groundwater to be sold for commercial purposes. 48It is the next matter to be addressed that is the subject of conjecture. Applying the language of the Dictionary definitions, it is necessary to ask whether the extraction of groundwater on the Land is the use of the existing dwelling and outbuildings on the Land as an office or a place of business. The Council submits that it is not. 49The applicants contend that while the definition allows the use of the existing dwelling or outbuildings for some associated aspect of groundwater extraction, it is unnecessary for that process to be confined to those buildings. The defined activity, so it is submitted, is apt to comprehend some part of the activity being undertaken on the Land without being confinement to the existing buildings. 50In support of its submission, reliance is placed upon the distinction drawn between the definition of "home business" in the Dictionary to the LEP and the definition of "home occupation" in the same Dictionary. The latter definition refers to an occupation carried on "in a dwelling house or in a dwelling". This, so it is argued, demonstrates that the maker of the environmental planning instrument did not intend to confine the home business user to buildings on a residential allotment but, unlike the situation that pertains in the case of a "home occupation", use of the curtilage or land upon which the dwelling or associated building is constructed could also be used for the prime purpose of the activity in contemplation. 51I do not accept that the difference in expression between these two definitions necessarily supports the conclusion that the applicants seek to draw. The language used in a number of definitions found within the Dictionary to LEP 2005 adopts a consistent verbal formula to identify whether or not the conduct of a defined activity in any of its aspects is to be confined to a building. 52By way of example, the definitions of "animal establishment", "bulky goods showroom", "community centre", "educational establishment", "hospital", "liquid fuel depot", "medical centre", "place of worship", "self-storage unit", and "shop" are all definitions that identify a "building or place" used in the manner identified in the respective definitions. The clear intent is that the particular use is not confined to a building. 53By contrast, there are definitions contained within the Dictionary that define particular activities by reference only to the building used for that activity. Those definitions include "arts and crafts gallery", "club", "public building", "public transport terminal". 54This contrast in verbal formula used by the maker of LEP 2005 suggests to me that where the activity of the user engaging the particular definition was intended to extend beyond a building, that intention was accommodated by the incorporation of the words "or place" following the word "building" within the relevant definition. In the case of the definition of "home occupation", the expressed limitation requiring that it be "carried on in a dwelling house or in a dwelling" provides no more than an emphasis upon the need for the entire activity, including any incidental aspects of it, to be so contained. It seems to me that this limitation has been expressed to ensure that incidental aspects of the activity of the kind addressed in the respective definitions of "home business" and "home employment" potentially having some external impact, cannot exist in the case of a "home occupation". 55Quite apart from the verbal or textual markers that may be identified in the definitions of other activities, substitution of the identified purpose of development within the definition of "home business" itself, does not support the applicants' contention. One cannot say of the applicants' development that the use of the existing dwelling and its present outbuildings is its use as the extraction of groundwater. Undoubtedly, the use of a bedroom as an office to undertake administrative tasks will involve an incident of the business but it does not involve that dwelling as or for the extraction of mineral groundwater. 56The applicants sought to justify their position by the example of the occupants of a dwelling conducting a market garden on the Land, assuming that garden was confined to an area of 50 m 2 (definition, paragraph (c)). However, it seems to me that such an enterprise would not, in the proper use of language, involve the use of a dwelling or other outbuilding located on the residential allotment as market gardening, even assuming that those primarily responsible for the enterprise were the residents of the dwelling. Such an activity, like that proposed, would exploit the resources of the land but would not necessitate the use of the dwelling or other buildings on that land for that purpose. 57I have earlier identified the manner in which groundwater extraction and its removal from the site would take place. First, it involved access to groundwater which itself is a primary product ( Liauw v Gosford City Council [2004] NSWLEC 72 at [17]). That primary product is extracted from the land through a constructed bore and by means of a pump located at the surface. As I have also indicated, the pump is operated by a switch located in the garage. Upon its activation, the extracted water is piped to the storage tank. From the tank it is in turn pumped through pipes to the point at which it is connected to a tanker truck parked in the road reserve. 58The word "building" is defined in the Dictionary to LEP 2005 to have the same meaning as that found in s 4 of the EPA Act. The latter definition indicates that a building includes part of a building as well as "any structure or part of a structure (including any temporary structure or part of a temporary structure)". 59I do not think that, in context, it can have been intended that such "structures" as may be involved in encasing the extraction bore, covering any pumps or installing pipes to convey extracted water to and from the storage tank were intended to meet the word "building" as used in the critical definition. A contention that the exploitation of the resource did involve both the use of the dwelling and these other buildings or structures because all were "buildings" within the meaning of the definition, would not to my mind meet the objective of the "home business" definition as I have sought to explain it. 60The inappropriateness of too literal an interpretation of a statutory definition in a context similar to the present were addressed by Mahoney JA (Clarke and Meagher JJA agreeing) in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302. When addressing a similar definition of "building", his Honour said (at 306): "It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature intended and to do so without extending to things which were never envisaged. The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong ... it is sometimes said that legislative terms should be given an unrestricted construction because 'it can do no harm', that it can safely be left to the administrative good sense of, as in this case, council officers and others to apply the law when it is sensible to do so. This of course, is a wrong approach. It subverts the rule of law and places upon officials an unspecified administrative discretion not subject to controls." His Honour continued (at 306): "The better approach, is in my opinion, to determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve." 61The purpose, as I have sought to demonstrate, is to allow a commercial function to be conducted within a dwelling or other building erected upon the dwelling allotment where the essential business of the operator is focussed upon and located within those structures. For reasons explained, it does not contemplate exploitation of the land by extraction or removal of a primary product from it which has no essential connection with the residential buildings or residential use but involves an exploitation of that resource from the land upon which those buildings stand. 62For these reasons, I conclude that the activity proposed by the applicants for the Land is not to be characterised as a "home business" within the meaning of LEP 2005. It would appear to satisfy the definition "commercial premises". Development for that purpose in the Bushland Conservation zone is prohibited. Rural industry 63Having expressed the conclusion reached in the preceding paragraph, it is strictly unnecessary to address the other issues raised by the parties. However, those issues were fully argued and against the possibility that I have erred in my determination of the first issue, it is appropriate that I address them. 64It was contended on behalf of the Council that what is proposed by the applicants should be confirmed as a "rural industry". Although the expression "rural industry" is nowhere to be found in LEP 2005, it is contended that such a description aptly describes the purpose for which the applicants intend to use the Land. As there is no activity by that description that is permitted without consent or permissible with consent, such a use of the Land must be prohibited: cl 32(5). 65As I understood the argument advanced on behalf of the Council, it seeks support for this contention by referring to the provisions of State Environmental Planning Policy No. 30 - Intensive Agriculture ( SEPP 30 ). The submission, as I understood it, involves these propositions: (i) subject to exceptions that are not presently relevant, SEPP 30 applies throughout the State (cl 3(1)); (ii) to the extent of any inconsistency between SEPP 30 and another environmental planning instrument, the provisions of the Policy prevail (cl 4); (iii) cl 9 of SEPP 30 provides that reference in an environmental planning instrument to industry does not include a reference to rural industry; (iv) reference to industry in LEP 2005 should not therefore be read to include use of land for the purpose of a rural industry; (vi) not every conceivable activity capable of being undertaken on land will fall within a defined category; (vii) it is therefore necessary to categorise that which is intended by the applicants, accepting that it cannot be categorised as an industry by dint of cl 9 of SEPP 30; (viii) as the proposed activity involves a process of extracting or dealing with a primary product on and from the Land, its appropriate categorisation was as a rural industry (albeit that the expression is neither defined in SEPP 30 nor in LEP 2005); (ix) as a rural industry is not identified in the land use matrix to cl 32(6) of the 2005 LEP, it is prohibited (cl 32(5)); (x) even if the proposed activity might otherwise fall within the definition of "home business", the fact that it is also comprehended by the prohibited activity of "rural industry" means that it cannot lawfully be undertaken on the Land and is therefore prohibited ( CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270). 66If it was appropriate to approach the determination of this case in that manner, there is substance in the submission made on behalf of the Council. There is some analogy between the approach advocated on behalf of the Council and those considerations that found favour with the Court of Appeal in CB Investments . Effectively, the applicants succeed or fail upon the argument that their activities are wholly comprehended by the definition of "home business". Just as the activities in CB Investments could only be lawfully undertaken if the purpose was confined to agriculture, so in the present case, the applicants can only succeed if the activity is properly characterised as a home business. Unlike the position that pertained in Friends of Pryor Park Inc v Ryde Council [1995] NSWLEC 160 (Bignold J, 25 September 1995, unreported), rural industry cannot be seen as a species of the genus "home business". 67However, I do not rely upon this submission in order to sustain my conclusion. First, for reasons already given, the structure of the land use matrix is such that unless an activity falls within a category of development identified in that matrix as being either permitted or permissible with consent, it is prohibited. Second, the alternate argument advanced on behalf of the Council assumes that rural industry is the correct categorisation. In the absence of any definition, I do not accept that this is necessarily so. However, it is sufficient for present purposes to determine that what is proposed by the applicants does not fall within the definition of "home business" and by operation of cl 32(5) of LEP 2005 is thereby prohibited. Anshun estoppel 68I have earlier recited the fact that by orders made on 13 February 2007, the present applicants were restrained from carrying out the extraction and removal by pumping of groundwater from the Land "without consent". It is by reason of that injunction that the present applicants seek their present declaratory and consequential relief. For its part, the Council relies upon the making of that order and the circumstances of its making by contending that, even if the proposed use can properly be categorised as a "home business", the applicants are estopped from contending that their currently proposed groundwater extraction activity does not require development consent. They rely upon the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (see also Henderson v Henderson [1843] 3 Hare 100 at 115; 67 ER 313 at 319; Rahme v Commonwealth Bank of Australia [1991] NSWCA 230 ). In short, the Council submits that, assuming the applicants' activities are permitted, without consent, the opportunity to so contend ought to have been taken before Jagot J in February 2007. 69The principle of estoppel articulated by the High Court in Anshun involved the acceptance of what was described as "the extended principle" articulated by Sir James Wigram V.C. in Henderson . In the latter case, the Vice-Chancellor had indicated that the extended principle extended to "every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." Applying this extended principle, in the joint judgment of Gibbs CJ, Mason and Aitken JJ in Anshun , their Honours said (at 602): "In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it." Thus, a test of reasonableness is to be applied. 70The determination of disputes between parties in a single set of proceedings where all issues pertaining to that dispute are capable of being raised was emphasised by the High Court in Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575. In the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ their Honours said (at [36], omitting citations): "Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel, all find their roots in that policy. .... Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel." 71Articulation of the principles of Anshun estoppel are, with respect, helpfully stated and summarised in the judgment of McColl JA (Giles and Campbell JJA agreeing) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231. After referring to those parts of the judgment of the plurality in Anshun to which I have already referred, her Honour stated, citing observations made in judgments of the Federal Court of Australia, that this particular form of estoppel introduces an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings (at [82]). Her Honour identified that such an estoppel will also arise where an omission to plead a claim or defence will contribute to the existence of conflicting judgments, even if not raised on the same cause of action, but involving a declaration of "rights which are inconsistent in respect of the same transaction" (at [83]). However, her Honour continued (at [84]): "A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form ... . In determining whether an Anshun estoppel has been established, the court inquires into realities and not mere technicalities". Importantly, her Honour indicated that when such an estoppel is raised, it is open to the Court to look at "any material that shows what issues were raised and decided". The observations of Brennan J in Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at 263 were cited for this last proposition. 72The application of Anshun estoppel to proceedings brought within this Court's jurisdiction have been considered on a number of occasions. In the course of argument, the parties referred to Holidays-a-Float Pty Ltd v Hornsby Council (1992) 75 LGRA 127; Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1; Multistar Pty Ltd v Minister for Urban Affairs and Planning (No. 2) ; [2000] NSWLEC 242; Ashfield Municipal Council v Armstrong [2003] NSWCA 353; Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184. The principles continue to be applied to proceedings of this kind notwithstanding the reservations expressed by Stein J (as his Honour then was) in Rosemount Estates Pty Ltd Minister for Urban Affairs and Planning . 73In approaching the application of principle in this case, there are two matters of particular relevance that emerge from the observations by McColl JA in Habib. The first is the necessity to regard a close relationship between proceedings as being insufficient to attract the estoppel coupled with the need to focus upon substance rather than form. The second matter of present relevance is the capacity to consider all material before the Court identifying that which demonstrates the issues raised and decided in the earlier proceedings. There is a third cautionary note that her Honour sounded which, omitting the citation of authority, was expressed as follows (at [85]): "In considering whether an Anshun estoppel has been established it is necessary to bear in mind that "shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation ... is a serious step, [and] a power not to be exercised except 'after a scrupulous examination of all the circumstances.' " 74The chronology of litigation and change in planning instruments is important to the determination of the present issue. Relevantly, the critical events are as follows: (i) the grant of development consent on 7 February 2000 for the extraction of groundwater and bottling onsite, apparently categorised as "home industry" under LEP 4, such consent being limited to a period of five years from the date of commencement; (ii) shortly prior to the lapsing of the consent, a development application was lodged, effectively seeking to continue that consent indefinitely but proposing the increase in production of both extraction and bottling to the equivalent of 5,000 litres per day; (iii) as that application was not determined by the Council, an appeal was brought to the Court at or about the time at which the 2005 consent lapsed; (iv) LEP 2005 commenced on 7 October 2005 but by dint of a savings provision, LEP 4 continued to be the principal instrument to be applied in determining the applicants' development application; (v) the present applicants continued their water extraction operation onsite, notwithstanding the lapsing of the 2000 development consent; (vi) on 5 July 2006 the present applicants were restrained by interlocutory injunction granted by Jagot J from continuing their activity onsite; (vii) on 28 August 2006, Pain J refused an application for amendment of the development application that was the subject of their appeal to the Court commenced in October 2005 because the amendment sought would change the activity from a "home industry" to a "rural industry" within the meaning of LEP 4, the provisions of that instrument remaining applicable to the undetermined development appeal; (viii) the appeal instituted by the applicants was discontinued on 18 October 2006; (ix) the Winnacott letter was written to the Council on 9 February 2007; and (x) the permanent injunction restraining development "without consent" was made on 13 February 2007. 75The Council relies upon the circumstance that at the time at which Jagot J granted the interlocutory injunction on 5 July 2006 and at the time of granting the permanent injunction on 13 February 2007, LEP 2005 was the operative instrument so that "home business" was on each occasion a form of development that did not require development consent. Notwithstanding that fact, so it is submitted, no contention to that effect was placed before her Honour, it being accepted that the activities of the present applicants were unlawful, the only matter raised in opposition to the orders sought by the Council in February 2007 being that all activity had ceased and there was no evidence of any suggestion that the impugned activity would resume. 76Applying the principles that I have earlier identified, I am unable to accept the Council's submission that the present applicants are estopped from asserting that their activity is able to be carried out without development consent (assuming, contrary to my primary finding, that it otherwise fell within the definition of "home business"). It must be remembered that the proceedings commenced by the Council against the present applicants in July 2006 was to restrain the conduct then being undertaken by them and said to be unlawful. 77The conduct of the present applicants found to be unlawful both at the time of commencement of the Class 4 proceedings and at the time at which Jagot J made the orders that she did on 13 February 2007 is not described, either in her Honour's judgment or in the facts before me, with the degree of particularity necessary to be considered for the purpose of determining that an Anshun estoppel arises. At [3] of her Honour's judgment, she describes the 2000 development consent as being one authorising "the extraction of groundwater". She then refered to the fact that although the consent had ceased, "the extraction activity continued without the required consent until 5 July 2006" when the ex parte injunction was made. The development consent granted in February 2000 not only authorised the extraction of groundwater but also authorised its bottling on the site. Her Honour's description of the activity seems therefore to have been a compendious one to include all of those activities associated with the extraction of groundwater that had been the subject of the 2000 consent. 78As I have said, counsel then appearing for the present applicants before her Honour conceded that "the activities" were being carried out on the property "at the material time" and required, but did not have, development consent under "the relevant planning instruments" (at [43]). A concession by the present applicants' counsel that under LEP 2005 those activities were prohibited is implicit from her Honour's reasons. 79In responding to the submission made on behalf of the applicants that no order was necessary by reason of their cessation of activities and no evidence to suggest their resumption, her Honour addressed the facts adduced before her on behalf of the Council. They indicated the difficulties encountered by the Council in having the applicants cease their activity until the grant of an ex parte injunction. Particular emphasis was given to the dirty equipment being used and the fact that the water was intended for human consumption "thereby raising potential public health risks" (at [8]). This aspect of the evidence was identified by her Honour as part of her reasoning for concluding that orders should be made (at [10]). 80Reference to the use of visibly dirty equipment being used for extraction does, at least, leave open the inference that the activity that had been conducted and which the Council sought to enjoin included some form of bottling or processing onsite as distinct from extraction, pumping to a tank and then piping of stored water from that tank to a vehicle for processing and bottling. Such an inference is enhanced by reference to [2] of the judgment. However, there is a more fundamental factual issue which militates against sustaining the Council's submission. 81The injunction that her Honour granted was made in aid of the declaration made in Order 1 of her orders on 13 February 2007. I have earlier set out the terms of that declaration. It determined that the activities then being conducted contravened the EPA Act because a consent had not been obtained for them, contrary to s 76A(1) of the Act. Had it been, as the Council presently contends, that the activity being considered was absolutely prohibited then one would have thought the declaration would have been made by reference to s 76B. 82Importantly, the inference that I draw from the terms of her Honour's orders is that activities that had been carried out by the present applicants were seen as activities in respect of which a development consent was required but not held. This approach may well have had its origins in the 2005 development appeal and the consideration given by Pain J to the application for amendment in August 2006 when focus was upon the provisions of LEP 4 and the categories of permissible development then being considered. 83However, the basis for the decision does not need to be left to speculation. In addressing the principles attending Anshun estoppel, I do not believe that it was encumbent upon the present applicants to posit an hypothesis, consistent with their present proposal, that if their development was to be carried out in that manner, an injunction in the terms made would not be appropriate. As I have said, the judgment of Jagot J makes clear that they had ceased all activities following the grant of the ex parte injunction and that position pertained at the time of the final hearing. At the risk of being later estopped, I do not consider that they were then bound to identify circumstances in which, should they have a change of heart in relation to the extraction of groundwater, they could undertake extraction without development consent. No doubt it was correct to determine that the extraction of groundwater from the site was prohibited. It is only if the activity is conducted within the constraints of the definition of "home business" that the activity falls outside a prohibited category of development. Nothing in the judgment indicates that the manner in which the activities had been carried out was so constrained. 84Against the possibility that a conclusion of the kind just expressed was reached, the Council makes reference to the Winnacott letter which, by its date, could not have been received more than four days prior to the orders made by Jagot J in February 2007. It is accepted by both parties that this letter was not drawn to the attention of the Court in February 2007. Indeed, the evidence indicates that it was not referred for legal consideration by the Council's solicitors until after orders were made and it was sometime thereafter before a response was received. 85Moreover, the Winnacott letter is somewhat tentative in that it seeks advice on a number of assumptions and in the context of a "pre-lodgement advice application". Importantly, it does not suggest that the extraction of groundwater in terms and subject to the constraints expressed in that letter reflected the manner in which the applicants had conducted their water extraction activity prior to being restrained from so doing in July 2006. I have concluded that it does not assist the Council's submission in support of its estoppel argument. 86In summary, on the material adduced before me, together with that identified in the judgment of Jagot J of 13 February 2007, it is not apparent to me that any defence was available to the present applicants to resist an order restraining the conduct of the activity which they had hitherto carried out on the Land. They were not then bound, at the risk of later being estopped from so doing, to posit an hypothesis or hypotheses upon which development by them may lawfully have overcome the prohibition that had founded the commencement of proceedings against them. Discharge or modification of orders 87If, in determining the primary issue, I am found to be wrong, the applicants submit that the terms of the injunction made by Jagot J on 13 February 2007 should be discharged or varied. They rely upon the provisions of Uniform Civil Procedure Rules ( UCPR ), r 36.17 in order to sustain such an application. That rule provides as follows: " 36.17 Correction of judgment or order ("sliprule") If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 88In substance, the applicants submit that the "mistake or error" arising in the orders made by her Honour was a failure to frame the order in a manner contemplating circumstances in which "the extraction and removal by pumping of groundwater" from the Land may be undertaken without the need for a consent required by s 76A(1) of the EPA Act. 89The ambit of the power available under UCPR 36.17 was discussed by Spigelman CJ (Santow JA and Handley AJA agreeing) in Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411. Having indicated that the rule should not be given a narrow interpretation, the Chief Justice said (at [116]): "In my opinion, carrying into effect the actual intention of the judge making the order, and making sure that the order did not have a consequence which the judge clearly intended to avoid, falls within the natural and ordinary meaning of the word 'correction', particularly as understood in the light of the overriding purpose." Reference to the "overriding purpose" is a reference to the provisions of s 56(2) of the Civil Procedure Act 2005, against which his Honour considered it appropriate to interpret the rule. 90In the present case, it cannot have been the intention of her Honour to foreclose, forever, the right to carry out a particular form of development even if an instrument made under the provisions of the EPA Act, particularly the present instrument, so allowed. Her Honour's clear intention was to restrain the conduct of an activity that did not conform with the planning law, as it then stood. In a case involving an order restraining the carrying out of activities found not to comply with the requirements of an environmental planning instrument, it may be appropriate to frame an order to the effect that the particular activity be restrained unless the activity should subsequently be permitted without development consent by operation of the EPA Act or an instrument made under it. 91Had I been persuaded that the activity proposed by the applicants was one that was permitted to be carried out on the Land without development consent, I would have been prepared to make an order appropriately modifying the orders made by Jagot J on 13 February 2007. Orders 92For the reasons stated, the orders that I make are: 1. Summons dismissed. 2. Applicants to pay the respondent's costs unless within seven days, a notice of motion is filed seeking to argue costs. 3. Exhibits may be returned. ********** I certify this and the preceding pages are a true copy of the reasons for the judgment of the Honourable Justice Malcolm Craig. Associate Date 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. Decision last updated: 06 September 2011