Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Liverpool City Council v Maller Holdings Pty Ltd trading as Sydney Horse Transport [2014] NSWCCA 299 Hearing dates: 15 October 2014 Decision date: 11 December 2014 Before: Macfarlan JA at [1]; Fullerton J at [51]; Bellew J at [52] Decision: (1) The Court answers in the affirmative Questions 1 and 2 of the Stated Case, and answers Question 3 "Does not arise". (2) The Court orders that the proceedings be remitted to the Land and Environment Court for resolution in accordance with those answers. Catchwords: LAND AND ENVIRONMENT - case stated by Land and Environment Court to Court of Criminal Appeal - development consents granted under previously operative environmental planning instruments authorised use of subject property for "stables" - respondent charged with using property for purpose not authorised under the current instrument of conducting horse transport business - whether use of property for horse transport business was authorised by historic consents - whether charge was defeated by authorisation of part of actual use of property - authorised use of stabling did not cover whole of use to which property was put Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5AE Environmental Planning and Assessment Act 1979 (NSW), ss 4, 76A, 76B, 76C, 109B Local Government Act 1919 (NSW) Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 Bardsley-Smith v Penrith City Council [2013] NSWCA 200; 195 LGERA 34 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; 201 LGERA 116 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates (1979) 39 LGRA 154 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1998) 16 NSWLR 50 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529 Category: Principal judgment Parties: Liverpool City Council (Appellant/Prosecutor) Maller Holdings Pty Ltd trading as Sydney Horse Transport (Respondent) Representation: Counsel: A Galasso SC (Appellant/Prosecutor) I Hemmings SC (Respondent) Solicitors: Hones La Hood (Appellant/Prosecutor) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2014/4774 Decision under appeal Citation: Liverpool City Council v Maller Holdings Pty Limited [2013] NSWLEC 154 Date of Decision: 2013-09-19 00:00:00 Before: Pain J File Number(s): LEC 2012/50757 HEADNOTE [This headnote is not to be read as part of the judgment] The respondent, Maller Holdings Pty Ltd, carries on business under the name "Sydney Horse Transport" on and from a property located at Warwick Farm in Sydney. Commencing in the 1960s, various development consents had been granted under relevant environmental planning instruments authorising the use of the property for "stables". By summons filed in Class 5 of the Land and Environment Court's jurisdiction (environmental planning and protection summary enforcement) the appellant prosecutor, the Liverpool City Council, alleged that from June 2010 until about 20 June 2012 the respondent used the property in a manner prohibited by the currently applicable environmental planning instrument, the Liverpool Local Environmental Plan 2008 - namely, to conduct a horse transport business. By judgment of 19 September 2013, Pain J found that the appellant had failed to prove the charge ([2013] NSWLEC 154). However, her Honour deferred the making of final orders and acceded to the appellant's request to submit for determination by the Court of Criminal Appeal the following questions of law arising in the proceedings: (1) Having found (at Judgment [127]) that the use of the property in the charge period can be characterised as being for the purpose of horse transport business, did I err in not finding that the Defendant did something which it was forbidden to do by the [Environmental Planning and Assessment] Act because part of that use was authorised by historic consents? (2) Having found (at Judgment [127]) that the use of the property in the charge period can be characterised as being for the purpose of horse transport business, did I err in finding that the use described in the existing consents as 'stables' (Judgment [130]-[133]) was available for the purposes of s. 109B of the [Environmental Planning and Assessment] Act to cover the use of the stables buildings during the charge period? (3) Having found (at Judgment [127]) that the use of the property in the charge period can be characterised as being for the purpose of horse transport business, and having found (at Judgment [132]) that the part of the business undertaken at the property during the charge period which relies on bringing and taking horses to and from the property is part and parcel of the stabling of horses, did I err in finding that that part of the business however described is permissible under the existing consents because of my finding (at Judgment [90]) that s. 76B and s. 109B operate concurrently? Held (per Macfarlan JA; Fullerton and Bellew JJ agreeing): Answering Questions 1 and 2 in the affirmative and answering Question 3 "Does not arise": (1) Both for the purpose of determining whether the use of the property was prohibited by the Liverpool LEP and for the purpose of determining whether the use of the property was authorised by the historic consents, the primary judge needed to find "what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises" in the charge period ([41]). This was a single task that did not involve determining the use of the property twice. Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529, applied. (2) The primary judge erred in not simply asking herself whether use of the property as "stables" was in substance the same as the use to which she found the property to have been put, namely, use as a horse transport business. In light of her factual findings, the answer to this question would necessarily have been in the negative ([45]). (3) Authorisation by the historic consents of part of the actual use of the property was not sufficient to result in failure of the prosecution. There remains in such circumstance a use of the property that is unauthorised and that is the use, as charged, for the purpose of conducting a horse transport business ([46]). (4) Whether the part of the use identified in Question 3 of the Stated Case was authorised would turn on whether that use was for an independent purpose of stabling, or whether the activities in question, whilst constituting stabling, were subsumed in the overall horse transport business such that they were not in substance carried out for the purpose of stabling but for the purpose of the horse transport business. This would have been a question of fact for determination by the primary judge if it had been relevant ([48]). Judgment 1MACFARLAN JA: This is the Court's determination of questions of law submitted to it by way of case stated by Pain J of the Land and Environment Court pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). 2The respondent, Maller Holdings Pty Ltd, carries on business under the name "Sydney Horse Transport" on and from a property located at Warwick Farm in Sydney, near to the racecourse of that name. Commencing in the 1960s, development consents were granted under various environmental planning instruments authorising the use of the property for "stables". 3By summons filed in the Land and Environment Court's Class 5 environmental planning and protection summary enforcement jurisdiction, the appellant prosecutor, the Liverpool City Council, alleged that in an identified two year period the respondent used the property in a manner prohibited by the currently applicable environmental planning instrument, the Liverpool Local Environmental Plan 2008 - namely, to conduct a horse transport business. 4In her judgment of 19 September 2013 Pain J found that, by reason of the historic consents to the use of the property for "stables", the appellant had failed to prove that the alleged offence had taken place ([2013] NSWLEC 154). However before proceeding to make final orders, her Honour acceded to the appellant's request to submit for this Court's determination the following questions of law arising in the proceedings: "1. Having found (at Judgment [127]) that the use of the property in the charge period can be characterised as being for the purpose of horse transport business, did I err in not finding that the Defendant did something which it was forbidden to do by the EPA Act because part of that use was authorised by historic consents? 2. Having found (at Judgment [127]) that the use of the property in the charge period can be characterised as being for the purpose of horse transport business, did I err in finding that the use described in the existing consents as 'stables' (Judgment [130]-[133]) was available for the purposes of s. 109B of the EPA Act to cover the use of the stables buildings during the charge period? 3. Having found (at Judgment [127]) that the use of the property in the charge period can be characterised as being for the purpose of horse transport business, and having found (at Judgment [132]) that the part of the business undertaken at the property during the charge period which relies on bringing and taking horses to and from the property is part and parcel of the stabling of horses, did I err in finding that that part of the business however described is permissible under the existing consents because of my finding (at Judgment [90]) that s. 76B and s.109B operate concurrently?" 5For reasons that appear below, I consider that Questions 1 and 2 should be answered in the affirmative, that Question 3 should be answered "Does not arise" and that the proceedings should be remitted to the Land and Environment Court for resolution in accordance with those answers. DEVELOPMENT CONTROLS APPLICABLE TO THE PROPERTY 6The effect of ss 76A and 76B of the Environmental Planning and Assessment Act 1979 (NSW) ("the EPA Act") is that development of land (defined by s 4 to include "the use of land") may only be carried out in accordance with the terms of an applicable environmental planning instrument, in the present case, the Liverpool Local Environmental Plan 2008 (the "Liverpool LEP"). Section 76C provides that the operation of these sections is subject to the other provisions of the EPA Act unless express provision is made to the contrary. 7Such a qualification on the operation of ss 76A and 76B is to be found in s 109B which permits the carrying out of development in accordance with pre-existing consents, notwithstanding the terms of the current environmental planning instrument. The respondent relied upon this provision to claim that the pre-existing consents for use of the property for "stables" authorised the use that it made of the property during the period the subject of the charge. 8It was common ground before this Court that the Liverpool LEP did not authorise that use. In this regard, there was no challenge to the primary judge's finding that the use was not as an "animal boarding or training establishment", defined by the dictionary in the Liverpool LEP to mean: "A building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital" (Judgment [20], [127]). 9The primary judge stated that the horse transport business she found to be conducted on the property was "variously described" (Judgment [98]) by reference to the following three definitions in the Liverpool LEP: "freight transport facility means a facility used principally for the bulk handling of goods for transport by road, rail, air or sea, including any facility for the loading and unloading of vehicles, aircraft, vessels or containers used to transport those goods and for the parking, holding, servicing or repair of those vehicles, aircraft or vessels or for the engines or carriages involved. transport depot means a building or place used for the parking or servicing of motor powered or motor drawn vehicles used in connection with a business, industry, shop or passenger or freight transport undertaking. truck depot means a building or place used for the servicing and parking of trucks, earthmoving machinery and the like." 10It is unnecessary to set out details of the historic consents as it was accepted on appeal that they remained applicable during the relevant period and authorised use of the property as "stables". They were granted under the County of Cumberland Planning Scheme Ordinance 1951 and the Liverpool Planning Scheme Ordinance 1972. Building approvals granted under Ordinance 71 under the Local Government Act 1919 (NSW) were also relied upon (see Judgment [7] to [43]). 11The respondent in this Court accepted that the following definition of "stables" in the Liverpool Planning Scheme Ordinance 1972 reflected the ordinary meaning of that word: "A building or place used or intended for use for the purpose of receiving, maintaining, boarding or keeping a horse or horses". 12The County of Cumberland Planning Scheme Ordinance 1951 did not contain any definition of "stables". THE ACTIVITIES ON THE PROPERTY DURING THE CHARGE PERIOD 13As neither party challenged the primary judge's finding that during the charge period the respondent carried on a horse transport business on the property, it is unnecessary to examine the detail of the respondent's activities on the property. Nevertheless, it is appropriate to refer to the following. 14An uncontested general description of the respondent's business was given as follows by Mr Murdock, its manager: "From here [on the property], I manage the Sydney Horse Transport business. We transport horses throughout Australia and receive horses from overseas also. The horses come to us for transport to sale yards and race events. A lot of those horses are transported Melbourne-Sydney-Brisbane. There are no permanent horses stabled on the site and most of the horses kept on site are in transit. When horses are travelling or being transported from Melbourne to Brisbane or vice versa, they will be unloaded and spelled for the day in the stables before being reloaded and transported at night. In addition horses being flown in from overseas, particularly from New Zealand will be unloaded on the site and stabled, before further transport. We have a quarantine section in the stables which is located at the rear for overseas horses" (Judgment [103]). Mr Jauncey, the Council officer to whom this description was given, gave evidence that there were 32 stables on the property. 15Mr Murdock described the use to which a demountable building on the property was put as follows: "It has showers and toilets in it and a recreation room with a television for the drivers' use. All trucks have sleeping cabins and the drivers all sleep in the trucks. I even sometimes sleep in the office when I finish late" (Judgment [104]). 16The primary judge referred as follows to the evidence of Mrs Adams, a neighbour, concerning trucks on the property: "110. Mrs Adams stated that, since the Defendant commenced its use of the property, horse transport trucks are regularly parked on the property. On some nights there have been up to eight trucks parked there and it is not unusual for trucks to come and go at all hours of the night and early morning. Mrs Adams has seen trucks being washed and cleaned out on the property by 'a big pressure cleaner' which happens daily and often on weekends. She says that the truck noise is extreme." 17Mrs Adams also gave evidence that from 2002 until 2007, the property was used for the training of horses at the Warwick Farm Racecourse. Mr Leemon, a local horse trainer, gave evidence that in or about 2010, the horse roll and walking areas were removed and the rear of the property was totally concreted. He said that from that time no horses were kept on the property that trained at the racecourse. 18The primary judge found that there were a large number of changes to the property during the charge period, including demolition or removal of a garage, construction of a concrete driveway, the concreting of the entirety of the property not otherwise having buildings or structures on it, the erection of traffic control bollards, the erection of vehicular gates on each of the driveways, the installation of the demountable building referred to above and its fit-out to make it suitable as a rest facility. 19Her Honour found that the trucks were regularly cleaned on the property, both inside and out, using hot water gurneys stored on the property and that, at times, trucks came onto the property without horses and were cleaned (Judgment [119] and [121]). She also found that trucks were mechanically repaired on the property and that truck drivers slept and rested in the demountable building fitted out for that purpose with bunk beds, cooking facilities and a recreation room with a television (Judgment [123] and [126]). THE PRIMARY JUDGMENT 20The primary judge found that development consents and building permits continued in force so as to permit, in accordance with s 109B of the EPA Act, the use of the property as stables. Her Honour noted that this permitted use was "unconfined" in the sense that none of the consents and permits were subject to relevant operational conditions such as defined hours of operation, limits on the length of stay of horses or limits on the mode of transporting horses to and from the premises (Judgment [87] and [89]). Her Honour continued: "89 .... It remains to consider the structure of the EPA Act to determine what elements the Prosecutor must prove or disprove given that finding. The Prosecutor submitted that only if development is prohibited under s 76B (meaning in this case through the characterisation of the purpose of the use of the property as a horse transport business variously described as a transport depot, truck depot or freight transport facility) does s 109B come into operation and such a defence only succeeds if consents continue in force which permit such a business. Given that the consents were granted under the CCPSO and LPSO which allowed different land uses to the LLEP 1997 and the LLEP 2008 such a submission if accepted would deprive development of land relying on a consent in force under s 109B of much of its protection under that section. For example, there is no definition of stables in the LLEP 2008 so that the use permitted by the consents is now prohibited given the operation of the relevant land use tables in the LLEP 2008. In this case the use of the stables to receive horses continues but the purpose for which horses are brought to the property has changed on the Prosecutor's case from a race horse training establishment up to about 2007 to a horse transport business from 2010. 90 The answer requires the construction of Pt 4 of the EPA Act which is a separate task to the attribution of the onus of proof considered above in the context of Ensile. The wording of s 76B and s 109B does not suggest there is a particular hierarchy of consideration imposed by the EPA Act whereby s 76B must be applied exclusively first, with the prohibition of development under an EPI necessary before the operation of s 109B can arise (the Prosecutor's submission). Rather, it appears more in keeping with the EPA Act that these provisions operate concurrently. This view is reinforced by s 76C which provides that Div 1 where s 76B is located is subject to other parts of the Act unless otherwise stated. That section was given a wide compass in Ensile at [24] but in this case need only arise in relation to another division in Pt 4, being Div 10 where s 109B is located. ... 93 The question is not that posed by the Prosecutor that, starting from an assumption that the use of the property by the Defendant is for the purpose of a "transport depot" or "truck depot" or a "freight transport facility" (all defined terms in the LLEP 2008), the Defendant must prove all the elements of s 109B in relation to such development, that is, that the consents and permits relied on permit the particular purpose of a use characterised in the Prosecutor's case." 21After considering the evidence concerning the respondent's activities on the property in the charge period, her Honour concluded that their purpose should be characterised as being for the conduct of a "horse transport business variously described by reference to three definitions in the [Liverpool LEP] (transport depot, truck depot, freight transport facility)" (Judgment [98] and [127]; see [9] above). Her Honour concluded that the use of the property was not "for the training, breeding, boarding, caring or keeping of horses on the property" and was not therefore an "animal boarding or training establishment" for which the LEP provided that the property could have been used with Council consent (Judgment [20]-[23] and [127]; see [8] above). 22The primary judge then proceeded to consider, as follows, whether the activities on the property in the charge period were nonetheless authorised by the historic consents relating to stables. 23In this regard, her Honour first noted that the use of the property "included use of the stables for holding horses and that the trucks which came to the premises usually carried horses which were loaded onto, or unloaded from, the trucks" ([129]). 24Her Honour then reasoned as follows to the conclusion that the activities on the property were authorised by the historic consents: "130 As the use in the charge period is consistent with the use permitted by the stable consents at least in part, the Prosecutor has not established the fourth element of the offence, that the conduct of the Defendant was forbidden by the EPA Act within the meaning of s 125(1). As already outlined above at par 90, s 76B is subject to other parts of the EPA Act, as provided for in s 76C. 131 I have said that, at least in part, the use was not prohibited to the extent that the use of the stables is permitted. As the Defendant acknowledged in its case and without admission, had a charge been mounted based on the failure to comply with the existing consents different issues may arise. That is not the case mounted by the Prosecutor however. 132 The Prosecutor did submit in written submissions that even if there was a possibility that the Defendant used the property for a purpose that was permitted under the LLEP 2008 as, say, an animal training or boarding establishment, there was an independent and dominant use of the property by the Defendant for the Defendant's horse transport business which included the spelling of horses in transit. Given my finding at par 90 about the structure of the EPA Act in Pt 4, that is not the correct comparison in contrasting the horse transport business use with what is permitted under the consents. Given that the stables use is permitted and unconstrained in that no operational conditions for that use are imposed in any of the historic consents, the part of the transport business which relies on bringing and taking horses to and from the property and the spelling of horses is part and parcel of the stabling of horses. That part of the business, however described, is permissible under the consents. That finding cannot be overcome by the characterisation of use undertaken by the Prosecutor given my conclusion on how s 76B and s 109B operate. 133 Even if the dominant purpose is characterised as a horse transport business, a large part of that use is permitted in that it can also be correctly described as the stabling of horses carried out in accordance with the historic consents. That the purpose of that use can be variously described does not undermine the legal effect of the historic development consents. These findings mean that the Prosecutor has not established the fourth element of the offence. 134 The possibility that some parts of the use of land such as the parking and servicing of trucks and the provision of short-term accommodation for drivers in transit are not part of or ancillary to the stables use and may not therefore be lawful is not the nature of the case charged. If this was to now be raised the Prosecutor would need to refashion the charge. Some of the issues that may arise where the use of land is found to be for two or more purposes were referred to recently in Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147 at [28]. It is not appropriate to speculate further on what case could be mounted by the Prosecutor. I must rule on the basis of the charge presented." THE STATED CASE 25The Stated Case signed by the primary judge annexed her reasons for judgment and adopted the findings made in it. 26The questions stated for the determination of this Court are set out in [4] above. I note that in this Court the parties agreed that the reference to "the use of the stables buildings" in Question 2 should be read as a reference to the use of the subject property. PRINCIPLES AS TO THE IDENTIFICATION OF USES OF PROPERTY 27In the seminal decision of the High Court in Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529, neither pottery-making nor any use in the category of "light industry" into which pottery-making fell under the relevant town planning by-laws was permitted on the subject land unless the use constituted the continuation of an existing use. The Court held that the land could continue to be lawfully used for the existing purpose of pottery-making but not for the purpose of any other activity within the category of light industry. 28Kitto J (with the concurrence of Menzies and Owen JJ) stated that it was necessary that "a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws" (at 535). His Honour continued: "The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorised by [the by-law], whether that use is really and substantially a use for the designated purpose" (ibid). 29His Honour considered that characterisation of a use as "professional offices" would be sufficiently specific but where, for example, premises were being used as a butcher's shop, the relevant purpose would be use as a butcher's shop and not use as a shop generally. Likewise, he considered, turning to the case before him, that use of the relevant premises for making anything other than pottery would not be use for pottery-making. Thus, he concluded that the existing use provision did not authorise any activity within the category of light industry other than pottery-making. 30The principles to be applied where land is used for two or more purposes were stated by Glass JA (with whom Hutley and Samuels JJA agreed) in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161: " ... where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts ... Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed." 31To similar effect, Glass JA observed in Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates (1979) 39 LGRA 154 at 160: "[w]hen two or more purposes co-exist one of which is prohibited and one permitted (with or without consent), it is necessary as a matter of construction to determine which of the two shall prevail ... if one of two conflicting purposes is dominant and the other servient, it is the former which lends its character to the development. On the other hand, if neither subserves the other, the ordinance on its proper construction treats the development as actuated by two independent purposes one of which is allowed and one disallowed". 32In Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 309-10, McHugh JA (with whom Hope and Samuels JJA agreed) referred to the need to reconcile the rights of owners with those of the local authority in giving effect to "existing use" provisions and stated that: "[A] test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land." 33In North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1998) 16 NSWLR 50 at 59, Kirby P stated that the general approach to be taken in considering the ambit of an existing use is "one of construing the 'use' broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question". 34In Bardsley-Smith v Penrith City Council [2013] NSWCA 200; 195 LGERA 34, the Council granted development consent for the use of premises in a shopping centre as a "Chemist Warehouse". The relevant LEP prohibited use for the purpose of "shops" but permitted development for the purpose of a "warehouse or distribution centre". This Court held that the premises were being used for two purposes: as a distribution centre, and as a "shop" (being the large scale retailing of pharmaceutical and related products: [118]). It found that the latter (prohibited) use could not be characterised as subordinate or subservient to the former (permissible) use but was rather an independent one, because, while there was a connection between the respective uses, they were "not inextricably linked ... [they were] capable of operating independently of each other and to a considerable extent they [did] so" (at [120]). The latter use therefore constituted an unlawful use of the property. RESOLUTION OF THE APPEAL 35The steps in the primary judge's reasoning and my comments on them are as follows. 36First, her Honour found that the use of the property in the charge period included use of the property for the stabling of horses (Judgment [129] - see [23] above). Her Honour did not find that that use covered the whole of the activities being carried out on the property as in Judgment [129] she used the word "included" and in Question 1 of the Stated Case she referred to "part" of the use of the property being authorised by the historic consents relating to stabling. 37Her Honour then stated that "[a]s the use in the charge period is consistent with the use permitted by the stable consents at least in part" (emphasis added), the prosecutor had not proved that the respondent's conduct was prohibited (Judgment [130]). Her Honour referred back to Judgment [90] in which she said that s 76B and s 109B of the EPA Act operate concurrently. 38It is not clear why her Honour here reached the conclusion that the charge failed. At least at this point in her reasoning, the most that could be said in favour of the respondent was that some of the activities on the property were conducted for the purpose of stabling, that being a use authorised by the historic consents. However, that left other activities being conducted for the purpose of the unauthorised horse transport business that her Honour found was conducted on and from the property. Even if it could be said that two businesses were conducted on the property (a horse transport business and a stabling business: see Foodbarn and Twibill referred to in [30] and [31] above), one of those businesses was unauthorised and that was the subject of the charge that the respondent conducted a horse transport business on the property in the charge period. The charge was accordingly proved. 39On the other hand, if the assumption were made that there were not two independent businesses conducted on the property but that the stabling activities were a part of and subsumed by the horse transport business, the same result would follow: the respondent conducted an unauthorised horse transport business on the property in the charge period. 40In Judgment [132], the primary judge concluded that because the stabling use permitted under the historic consents was "unconstrained" (see [20] above), "the part of the transport business which relies on bringing and taking horses to and from the property and the spelling of horses is part and parcel of the stabling of horses". If her Honour was saying that a part of the transport business beyond that which was strictly stabling, but not the whole of the remainder of the transport business, was part of the stabling use, the charge should still have been treated as proved as use for the unauthorised horse transport business was established: the authorised use of stabling did not cover the whole of that use. 41However, if her Honour was saying that all of the apparently non-stabling aspects of the horse transport business were in effect ancillary to the stabling use, her Honour in my view erred in her approach. Both for the purpose of determining whether the use of the property was prohibited by the Liverpool LEP and for the purpose of determining whether the use of the property was authorised by the historic consents, the primary judge needed to find "what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises" in the charge period (Shire of Perth v O'Keefe: see [28] above). This was a single task that did not involve determining the use of the property twice. 42The next step should have been to determine whether that purpose of use was prohibited by the LEP and, if it was, whether it was authorised by the historic consents. This should have been approached in the commonsense fashion referred to in Shire of Perth v O'Keefe, Royal Agricultural Society and North Sydney Municipal Council (see [29], [32] and [33] above). 43In considering the strictures of the Liverpool LEP, her Honour found that the purpose of the use of the property was the conduct of "a horse transport business". This is not an expression used in the Liverpool LEP but in her Honour's view it referred to the same activities as the expressions "transport depot", "truck depot" and "freight transport facility" (see [9] above) which were identified in the LEP as being prohibited. 44The fact that the term "stables" used in the historic consents was not, as a matter of language, the same as the term "horse transport business" which her Honour used to describe the use of the property was not of determinative significance. If those terms had been regarded as in substance referring to the same use, the conclusion that the historic consents authorised the horse transport business would have followed. Yet it is apparent from her Honour's judgment that she did not regard the two expressions as referring in substance to the same use: although she regarded stabling as falling within the ambit of the horse transport business use, she did not consider that it covered the whole of the field of that impermissible business. 45I consider that her Honour erred in not simply asking herself whether use of the property as stables was in substance the same as the use to which she found the property to have been put, namely, use as a horse transport business. In light of her factual findings, the answer to this question would necessarily have been in the negative. 46In Judgment [133] and [134], the primary judge concluded that authorisation by the historic consents of part of the actual use of the property was sufficient to result in failure of the prosecution. With respect, I do not agree. As I have already pointed out, there remains in such circumstance a use of the property that is unauthorised and that is the use, as charged, for the purpose of conducting a horse transport business. 47The respondent sought to support the judgment by instancing a development consent for a butcher's shop and the subsequent prohibition of the same land use for "retail premises". The respondent submitted that the "clear and deliberate effect of s 109B is to permit the butcher's shop to continue" (written submissions [22]). This reflects an example given by Kitto J in Shire of Perth v O'Keefe (see [29] above) and is undoubtedly correct. However, the example does not assist the respondent in this case because the equivalent here of the "butcher's shop" use is the authorised "stabling" use. The equivalent of the "retail premises" use here is the "horse transport business" use which is broader than, but includes, the "stables" use. Permission for the "stables" use does not constitute permission for the broader "transport business" use, just as in Shire of Perth v O'Keefe the authorisation for pottery-making did not constitute permission to engage in other types of light industry (see [27] above). 48The reasons above necessitate affirmative answers being given to Questions 1 and 2 in the Stated Case. Question 3 asks whether the part of the business there identified was authorised by the historic consents. I would answer this Question "Does not arise" as the fact that part of the business may have been authorised does not mean that there was not, as alleged by the prosecutor, a use of the property for the impermissible purpose of conducting a horse transport business. Whether the identified part of the use was authorised would turn on whether that use was for an independent purpose of stabling (in which case it would have been authorised by the historic consents) or whether the activities in question, whilst constituting stabling, were subsumed in the overall horse transport business such that they were not in substance carried out for the purpose of stabling but for the purpose of the conduct of the horse transport business (in which case they would not have been authorised by the historic consents). This would have been a question of fact for determination by the primary judge if it had been relevant. 49It is not entirely clear what her Honour had in mind in referring at the end of Question 3 to ss 76B and 109B operating concurrently (see also Judgment [89] and [90] quoted at [20] above) as s 76C renders s 76B subject to the operation of s 109B. As I have indicated above, a finding as to the actual use of the property is to be made and then consideration given to whether or not that use is in substance the same as that referred to in a current environmental planning instrument or in historic consents. It will then be clear whether s 76B prima facie prohibits the use and, if it does, whether s 109B nevertheless operates to sanction it. ORDERS 50For the reasons I have given, Questions 1 and 2 set out in [4] above submitted for the determination of this Court should be answered "Yes", noting that the words "stables buildings" at the end of Question 2 should, by the agreement of the parties, be amended to read "property" (see [26] above). Question 3 should be answered "Does not arise". The proceedings should be remitted to the Land and Environment Court to be resolved in accordance with these answers. 51FULLERTON J: I agree with Macfarlan JA. 52BELLEW J: I agree with Macfarlan JA. ********** 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: 11 December 2014