ADI Limited v Hawkesbury City Council
[2000] NSWLEC 203
•10/18/2000
Reported Decision: (2000) 110 LGERA 406
Land and Environment Court
of New South Wales
CITATION: ADI Limited v Hawkesbury City Council [2000] NSWLEC 203 PARTIES: APPLICANT
ADI LimitedRESPONDENT
INTERVENER
Hawkesbury City Council
BongersFILE NUMBER(S): 10329 of 2000 CORAM: Pearlman J KEY ISSUES: Development :- open area site for the testing of electromagnetic emissions - consent orders - objector - characterisation of proposed development - whether development an industry - consistency with zone objectives - whether development out of character with the surrounding area - visual impact - noise impact LEGISLATION CITED: Environmental Planning and Assessment Model Provisions 1980
Factories, Shops and Industries Act 1962 s 4
Hawkesbury Local Environmental Plan 1989
Land and Environment Court Act 1979 s 38(2)
Radiocommunications Act 1992 (Cth)CASES CITED: Egan and Ors v Hawkesbury City Council and Anor (1993) 79 LGERA 321;
Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21DATES OF HEARING: 16/08/2000, 17/08/2000 DATE OF JUDGMENT:
10/18/2000LEGAL REPRESENTATIVES:
APPLICANT
Mr P R Rigg (Solicitor)
SOLICITORS
DeaconsRESPONDENT
INTERVENER
Mr M H Tobias QC with Mr G B Newport (Barrister)
SOLICITORS
Abbott Tout
Mr B J Preston SC (16/08/2000)
Mr T T To (Solicitor) (17/08/2000)
SOLICITORS
PricewaterhouseCoopers Legal
JUDGMENT:
IN THE LAND AND
10329 of 2000
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 18 October 2000
- Applicant
- Respondent
Intervener
Introduction
1. In these class 1 proceedings, the applicant, ADI Ltd, has appealed against the decision of Hawkesbury City Council to refuse to grant development consent in respect of an open area site for the testing of electromagnetic emissions, the site being described as lot 2 in DP 751632 and known as 714 Upper Colo Road, Upper Colo.
2. The council and ADI Ltd (“ADI”) have, as between themselves, now agreed as to the outcome of the proceedings. They have therefore applied to the Court for an order by consent determining the development application by the grant of consent subject to conditions.
3. Clause 9(b) of the Court’s Practice Direction 1996 refers to the matters required to be addressed in relation to consent orders of this nature, in the following terms:
The parties will be required to present such evidence as is necessary to allow the Duty Judge to determine whether it is appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account.
4. Ms Sally Bongers is an objector to the proposed development. She resides on an adjacent property described as pt 31 DP 657376 and known as No 2283 Singleton Road, Upper Colo. On 7 July 2000, she applied by way of notice of motion for leave pursuant to s 38(2) of the Land and Environment Court Act 1979 to be represented, give evidence and make submissions as if a party to the proceedings. Leave in those terms was granted by Justice Bignold on that date.
5. As a consequence of Ms Bongers’ appearance by leave, three issues arise for determination. They are:
(1) The characterisation of the proposed development - under the Hawkesbury Local Environmental Plan 1989 (“the LEP”) is the proposed development prohibited or permissible with consent?
(2) Is the proposed development consistent with the objectives of the zone within which the site is located, being the 7(d) Environmental Protection (Scenic) zone?
(3) Should the development application be refused on the merit grounds of being out of character with the surrounding area, visual impact and noise impact?
The factual background
6. The development application described the proposed use as the “installation of an open area site for EMI/EMC testing”. Its purpose is to provide a commercial facility for the testing of electrical and electronic equipment for electromagnetic interference (EMI) and electromagnetic compatibility (EMC). An example of EMI is the interference lines which sometimes occur on a television screen when an electric motor is operating nearby.
7. The testing is designed to take place outdoors in an area which is quiet and relatively free from electromagnetic signals which might interfere with the measurements. The test area is a level paved or concreted area with a metallic mesh cover, about 35 metres long and about 5 to 10 metres wide. At one end of the test area, there will be a turntable upon which the item under test will be placed, turned on and operated. At the other end, there will be an antenna tower, about 4 metres high, for picking up signals radiated from the item under test. Signals picked up by the antenna are sent to a receiver to measure the EMI levels. The length of the test is normally four to eight hours per item, and it is intended that testing will be carried out on the site between the hours of 9.00 am and 5.00 pm Mondays to Fridays.
8. The only other structural elements proposed in the development is a small site shed or caravan, and power and signalling cables connecting that caravan with the turntable and the antenna tower. Access to the site is via an unsealed road which serves part of the site and is proposed to be extended along the site by about 180 metres.
9. The location of the site is described in the council officer’s report to the council’s general purpose committee for its meeting on 29 February 2000. The site is located about 7 kilometres from the Singleton/Putty Road, and consists of low flat pasture lands with bushland rising behind to approximately 160 metres AHD. The lowlands and bushland are separated by a small intermittent watercourse, and the test area is about 30 metres to the north of the watercourse. Surrounding land uses include a residence, cleared grazing paddocks, the road and the Colo River to the north and east, bushland to the west and Wollemi National Park to the south. The nearest residence is about 250 metres to the north east, and about 4 kilometres to the west of the site is another outdoor EMC testing area operated by EMC Technologies Pty Ltd.
10. The reason for EMI/EMC testing derives from a set of standards relating to EMI developed by the Australian Communication Authority (formerly the Spectrum Management Authority) under the Radiocommunications Act 1992 (Cth). An EMC framework has been developed, which, in brief, has the following features:
(a) its aim is to control EMI by requiring manufacturers and suppliers of electrical and electronic equipment to comply with certain standards;
(b) before a product may be offered for sale, manufacturers or suppliers must, amongst other things, make what is called a “declaration of conformity” ;
(c) the declaration of conformity is a formal attestation that the product meets the standards set by the EMC framework, and it must be supported by technical documentation, including test reports;
(d) the testing may be carried out by a commercial testing facility, and usually testing is carried out upon a sample of the item which is manufactured in Australia or which is intended to be imported;
(e) testing alone is not sufficient, because a test report simply indicates that the sample meets the required standards. The declaration of conformity must attest to quality control or other quality management systems which will provide consistency of production of items with the results from the sample tested;
(f) the testing is simply a test of a finished item. It does not require the addition of any component to the item tested;
(g) before a product can be offered for sale, it must contain a label, which may only be affixed if the declaration of conformity has been completed and supported by the required technical documentation;
(h) failure to comply with the EMC framework may constitute an offence under the Radiocommunications Act 1992 (Cth) and expose the manufacturer or supplier to prosecution and penalty.
11. According to material tendered in evidence, ADI holds itself out as having the experience, expertise and independence necessary for providing EMC testing. The proposed development is intended to be used by ADI in providing its commercial testing services.
Characterisation of the proposed development
12. Under the 7(d) zoning table in the LEP, the only purpose for which the site may be used without development consent is “agriculture (other than the felling of trees)”. A number of purposes are prohibited, and all other purposes fall within an innominate class of development which may be carried out only with development consent. Included amongst the purposes which are prohibited are “industries” and “light industries”.
13. The term “industries” is not directly defined in the LEP, but cl 6 adopts for the purposes of the LEP the Environmental Planning and Assessment Model Provisions 1980 (“the Model Provisions”) subject to some irrelevant exceptions. The Model Provisions contain the following definition:
‘industry’ means:
(a) any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962; or
(b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business;
but does not include an extractive industry:
14. In s 4 of the Factories, Shops and Industries Act 1962, the term “manufacturing process” is relevantly defined as follows:
‘manufacturing process’ means any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking up, or adapting of any goods or any articles or any part of an article for trade or sale or gain, or as ancillary to any business …
15. Bearing in mind the factual background and legislative provisions which I have set out, the competing arguments may be briefly summarised. Mr Preston SC, for Ms Bongers, submitted that the proposed development is prohibited because it should be properly characterised as an “industry”. In his submission, the testing which ADI proposed to carry out upon the site is an integral and necessary part of the “manufacturing process”. The products which are to be tested are products which are ultimately to be sold; and testing is an essential precondition to the offering of those products for trade, sale or gain. What is to be carried out upon the site is therefore a “process in or incidental to … the making … preparing … finishing … or adapting of … goods … for trade, or sale or gain”. It is therefore properly characterised as an “an industry” and so characterising the proposed development accords with the dictum of Mahoney JA in Egan and Ors v Hawkesbury City Council and Anor (1993) 79 LGERA 321 at 327 that the definition of “manufacturing process” is a wide and comprehensive definition and should not be given a restricted construction .
16. Alternatively, in Mr Preston’s submission, the proposed development is a “manufacturing process” because it is “ancillary” to the business of the manufacture of the particular products, attributing to the term “ancillary” the Macquarie Dictionary definition of “auxiliary” being “giving support; helping; aiding; assisting” . Testing gives support or assists in the business of the manufacture of the particular products.
17. Mr Tobias QC, for the council, submitted that the proposed development should not be properly characterised as an “industry” because it is not part of the “manufacturing process”. It is simply a service which is supplied to the manufacturer or supplier of a product, being a service which either predates (in the case of products manufactured in Australia) or postdates (in the case of imported products) the manufacturing of the products. Testing is not a process which is “in” the making, preparing, or adapting of products for trade, or sale, or gain, in the sense that the testing could not be regarded as being “part” of that process. It is essential to the process of ensuring compliance with the relevant standards, but that does not make it “in or incidental” to the making, preparing or finishing of the products. In order for the testing to fall within the definition of “manufacturing process” it must, as a matter of fact and degree, be sufficiently in, or part of, the making, preparing or finishing of the particular goods. But here the testing is “in or incidental” to the manufacturing process in only a remote sense. Accordingly, the proposed development falls within the innominate purposes which are permissible with consent.
18. Furthermore, Mr Tobias submitted that the expression “ancillary to any business” is governed by the list of process words such as making, preparing, finishing or adapting, and is an alternative to the expression “for trade or sale or gain”, so that what the definition of “manufacturing process” encompasses is:
a process
- in or incidental
- to the making etc of any goods
- where the goods are either for trade, or sale or gain, or are ancillary to any business.
19. Accordingly, in Mr Tobias’ submission, simply inquiring whether or not the testing on the site is “ancillary to any business” is not the test required by the definition of “manufacturing process” . It is rather whether the testing is in or incidental to the making etc of the goods either for trade or sale or gain, or as ancillary to any business.
20. The problem of characterisation of the proposed development is far from easy to resolve. However, despite some misgivings, I have come to the conclusion that the proposed development is not an “industry” within the definition of “manufacturing process” in the Factories, Shops and Industries Act. I have reached that conclusion for the following reasons. It is, first of all, critical to focus on the proposed development on the site. What is to be carried out upon the site is the testing of a sample of products which are intended to be offered for sale. The function of the testing is simply to provide evidence of compliance with the required standards. It does not add any component to the product; not does it of itself require any making, altering, preparing or adapting of the product. It simply attests to the levels of EMI or EMC in relation to a sample of a product. It is true to say that the testing is a collateral step in the offering of a product for sale or trade or gain, because without the testing and the declaration of conformity which it underpins, the product could not so be offered. But the testing is a step in the “offering” of the product for sale; it is not, in my opinion, a step in the making, preparing, finishing or adapting of the product for sale. It would be possible to reach a different conclusion if the testing was to be carried out in the course of the making, preparing, finishing or adapting of the product for sale, so that it could be truly seen as part of that process. This explains Mr Tobias’ concession, properly made in my opinion, that, if the testing was to be carried out on the same site as the manufacturing process, the testing procedure would have the character of the manufacturing process. But this case is concerned only with the characterisation of the development which is proposed to be carried out upon the site, and that development is too remote from the process of making, preparing, finishing or adapting the product for sale or trade or gain to be properly regarded as being “in or incidental” to that process.
21. I should add that I agree with Mr Tobias’ submission that the words “as ancillary to any business” in the definition of “manufacturing process” are an alternative to the words “for trade or sale or gain” , and hence I do not accept that the proper inquiry, for the purpose of applying the definition, is simply to determine whether or not testing upon the site is “ancillary to any business”. It is, rather, to inquire whether the testing is in or incidental to the making etc of a particular product either for trade or sale or gain, or as ancillary to any business.
22. For these reasons, I conclude that the proposed development is not properly characterised as an “industry” for the purpose of the LEP. Accordingly, the proposed development falls within the innominate purposes for which development may be carried out within the zone with consent.
Consistency with the zone objectives
23. The objectives of the 7(d) Environmental Protection (Scenic) zone comprise, amongst others, the following objectives:
(a) to preserve the existing wooded ridges and escarpments;
(b) to protect hilltops, ridgelines, river valleys and other local features of scenic significance by controlling the choice and colour of building materials and the position of building, access roads and landscaping;
(e) to protect the low density, broad-acre character of the rural areas.
24. Clause 9(3) of the LEP provides, in the conventional manner, that the council shall not grant consent to the carrying out of development unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone.
25. Mr To (who appeared for Ms Bongers after the withdrawal by leave of Mr Preston SC) submitted that the proposed development was inconsistent with each of the objectives I have outlined.
26. The proper approach to the question of consistency with the zone objectives is now well settled. The guiding principle is that a development will be generally consistent with the zone objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is incompatible ( Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27).
27. In my opinion, the proposed development is not antipathetic to the objective set out in par (a), but it is antipathetic to the objectives set out in par (b) and par (e). So far as concerns par (a), the site is located in an open grassed valley paddock and the proposed development is not inconsistent with the preservation of the existing wooded ridges and escarpments.
28. But par (b) and par (e) are another matter. The objective in par (b) is to protect features of scenic significance by, amongst other things, controlling the position of building, access roads and landscaping. The position of the proposed structures upon the site and the access road to them pays no attention to the scenic significance of the site. On the contrary, the position of the structures is dictated solely by the desire to locate them in as quiet and remote an area as is possible, namely, the open grazed valley area of the site. Whilst landscaping is proposed as a condition of consent, the positioning of the building and the access road is not controlled by reference to protection of the scenic significance of the site, and, accordingly, the proposed development is not consistent with the zone objective specified in par (b).
29. Nor is the proposal consistent with the zone objective specified in par (e). It is true to say that the proposed development is low density, but it is antipathetic to protection of the broad-acre character of the rural area. The structures which are contemplated, and the nature of what is proposed to be carried out, are not at all described by the description “broad-acre character”. They detract from that quality rather than protect it.
Merit issues
30. The character and context of the site is important so far as concerns visual and noise impact. Ms Bongers tendered a series of photographs of the open valley where the site is located, and of the surrounding bushland hills and rock escarpment, as well as of the intermittent creek. Those photographs indicate, and her evidence supports, a quiet, isolated and unspoilt area. The council officer’s report to which I have earlier referred corroborates that description. At p 82, the report states that “[t]he valley in which the site is located is quiet and isolated with the only known significant noise source in the area being the Singleton Road”.
31. It is against that character and context that the visual and noise impact of the proposed development is to be assessed. That assessment, in my opinion, leads to the inevitable conclusion that the proposed development is out of character with the area by reason of its visual and noise impact. The development comprises structures which do not conform to or blend with the scenic nature of the site and its surroundings. Moreover, although it is intended that a condition of consent would limit noise emissions to 5 dBA above background, the noise emissions, from the operation of machinery upon the turntable for up to eight hours Monday to Friday, is out of character with the quiet isolation of the site in its bushland setting.
Conclusion
32. In summary, I have concluded that the proposed development, whilst permissible with consent under the LEP, is inconsistent with some of the objectives of the 7(e) zone, and has unacceptable visual and noise impacts which are out of character with the site and its surroundings.
33. I decline therefore to make consent orders. However, the parties should have the opportunity of considering the future conduct of the proceedings in the light of this judgment. Accordingly, I stand the proceedings over to a call-over before the Registrar on 1 November 2000 at which directions for the future conduct of the proceedings may be made.
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