Archibald v Byron Shire Council

[2003] NSWCA 292

Reported Decision: 129 LGERA 311

Court of Appeal

CITATION:	Archibald v Byron Shire Council [2003] NSWCA 292
HEARING DATE(S):	21/08/03
JUDGMENT DATE:	5 November 2003
JUDGMENT OF:	Meagher JA at 1; Sheller JA at 22; Beazley JA at 74
DECISION:	1. Appeal allowed with costs; 2. Declarations and orders made by Cowdroy J on 13 December 2001 be set aside; 3. In lieu thereof, an order that the proceedings be dismissed with costs.
CATCHWORDS:	LAND AND ENVIRONMENT: Continuing use - Enlargement - Intensification of use of land - 'Output' Test - Whether increase in noise constitutes 'intensification'.
LEGISLATION CITED:	Environmental and Planning Assessment Act 1979
CASES CITED:	Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 at 587 Moylan v Nutrasweet Company [2000] NSWCA 337 Mistral International Pty Ltd v Polstead Pty Ltd Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 Eckersley v Binnie [1988] 18 ConLR 1 at 77-8 Norman v Gosford Shire Council (1975) 132 CLR 83 at 86 King v Lewis & Anor (1991) 74 GLRA 362 at 370 South Sydney City Council v Houlakis and Teakdale Pty Ltd (1996) 92 LGERA 401 Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535
PARTIES :	Kevin Phillip Archibald v Byron Shire Council
FILE NUMBER(S):	CA 40773 of 2002
COUNSEL:	A: T Robertson R: A Galasso
SOLICITORS:	A: Walters Solicitors R: Wilshire Webb Solicitors

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40109 of 1999
LOWER COURT JUDICIAL OFFICER :	Cowdroy J

CA 40773 of 2002

MEAGHER JA
SHELLER JA
BEAZLEY JA

Wednesday, 5 November 2003

ARCHIBALD v BYRON SHIRE COUNCIL

FACTS

The appellant (the defendant below) operated a roadbase quarry in the hinterland of Byron Shire, and had done so since 1955 (before the implementation of any controls on quarrying).

In 1988, there was introduced the Byron Local Environmental Plan, which did not place prohibitions on quarrying but required that Council’s consent be given. The appellant’s quarry, having existed before 1988, was a “continuing use” for the purposes of the Environmental Planning and Assessment Act 1979 (NSW) and no consent was required to be given for its operation. The same Act also provides, in effect, that no land lawfully used for quarrying can be intensified or enlarged beyond the use which obtained in February 1986.

The Council commenced a Class 4 action in the Land and Environment Court, contending that the appellant had, without Council’s consent, enlarged and intensified the quarry, and that certain of the quarry’s operations could not be classified as a “continuing use”. The Trial Judge found for the Council on all points.

HELD, allowing the appeal:

per Meagher JA:

1. (Per curiam) One measure of ascertaining whether or not there has been an intensification of a use of a quarry is to have regard to its output. [11]

2. (Per curiam) Fine roadbase was produced before and after 1986, and purchased as such by the Council. As far as fineness was concerned, this quality was largely achieved before 1986 by running a bulldozer over the rock. Sometime after 1986 a new machine was used, a crusher. It did the same job, only more economically. To modernize a plant’s production in this manner cannot constitute an “intensification”. [16]

3. (Per curiam) The winning of material from the quarry and its crushing were operations conducted both before and after 1986. They cannot be considered two independent uses of the land. Crushing the material is clearly ancillary to winning it and could not exist without the continuance of the quarry. [18]

4. The Trial Judge’s conclusion that the winning of material and its crushing were two separate uses, is an elision of two distinct legal concepts: intensification and the character of the continued use. [20]

per Sheller JA (Beazley JA agreeing):

1. Where a dispute involves something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the parties are entitled to have the judge enter into the issues canvassed before the Court, and to an explanation as to why one case is preferred over another. This is particularly so where there is disputed expert evidence [54]. Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 and Eckersley v Binnie [1988] 18 ConLR 1, referred to at [51].

2. The only sensible way to measure ‘intensification’ with respect to a quarry is to measure its output. King v Lewis & Anor (1991) 74 LGRA 362; (1995) 88 LGERA 183, cited. [60]

3. If different machinery had been brought in to increase output, and had achieved that effect, there would, within the meaning of s.109, have been an intensification of use. Here there was no increased output, and no suggestion that the new machinery was brought in to achieve this. All that changed was the efficiency of the method of production. The use remained the same. [71]

ORDERS

i. That the appeal be allowed with costs;

ii. That the declarations and orders made by Cowdroy J on 13 December 2001 be set aside;

iii. In lieu thereof, an order that the proceedings be dismissed with costs.

CA 40773 of 2002

MEAGHER JA
SHELLER JA
BEAZLEY JA

Wednesday, 5 November 2003

ARCHIBALD v BYRON SHIRE COUNCIL

Judgment

1 MEAGHER JA: This is an appeal by Mr Archibald, a mining operator, against an adverse judgment made by Cowdroy J in the Land and Environment Court in favour of the Byron Shire Council.

2 In my opinion the appeal should be upheld in almost every point argued, and I think regretfully, that his Honour’s judgment is most unsatisfactory.

3 Mr Archibald operated a roadbase quarry on Palmwoods Road in the hinterland of Byron Shire. He has done so since 1955, well before any law controlled quarrying was in the Shire. His biggest customer has always been the Council. In addition, its officers inspect the quarry annually. Further, it has hired machinery to Mr Archibald.

4 No relevant planning legislation existed until the proclamation of the Byron Local Environmental Plan in 1988. That plan did not prohibit quarrying on the land, but made it permissible with consent. But, the quarry having existed since well before 1988, it was a “continuing use” and hence did not need any consent: s. 109(1) of the Environmental Planning and Assessment Act 1979. However, s. 109(2) provides, in effect, that no land lawfully used for quarrying can, without Council consent, be intensified or enlarged beyond the land actually physically used at February 1986.

5 The Council embarked on this litigation contending that Mr Archibald had both enlarged the area of the quarry and intensified its use, in each case without Council consent.

6 It also made another claim against Mr Archibald: viz. that whereas previously one only use was involved in the running of the quarry, mining extractive material, latterly there was also a second use involved, the crushing, screening and processing of that material. The former use was a “continuing use”, the latter was not; no Council approval had been obtained for the latter use, whereas one was necessary.

7 His Honour found for the Council on all points.

8 The evidence before his Honour lay within a comparatively restricted compass. There were Spot Pan satellite imagery said to determine the area, location and date of vegetation removal or loss, which were relied on by a Dr Button (called by the Council); aerial photography said to be capable of being used to determine the area location and date of quarrying (used by Surveyor Thompson, called by the Council); expert surveys of the quarry site (Surveyor Loomes, called by Mr Archibald); and various lay witnesses. None of his Honour’s findings went to credit, and indeed much of the evidence of Mr Archibald was found by his Honour to be accurate. But the most important (and perhaps the most obvious) observation is that there was only one surveyor who gave evidence, i.e. only one professionally qualified witness who measured all relevant boundaries on the ground, Mr Surveyor Loomes, and it almost beggars belief either that the Council would embark on this type of litigation without engaging such a surveyor or that his Honour would virtually disregard the testimony of such a surveyor. This is all the more so in light of the admitted inadequacies of satellite and aerial surveys.

9 On the question of whether there had been an enlargement of the quarry, his Honour found that the quarry had expanded between 19 January 1990 and 1 August 1997 by about 6,500 m². This is a remarkable finding, and at this hearing the Council did not seek to uphold it. In these circumstances, there is really no need to discuss it at length. However, two points should be noted: (a) the only reference to 6,500 m² in the evidence was a reference by Mr Surveyor Thompson who calculated that the area cleared for the quarry in 1990 was 6,500 m², but he was talking of the total area of the quarry, not the area of its expansion, and (b), in any event, the area of 6,500 m² he did identify included not only the area actually used for quarrying but also a significantly large area of landslip. In my view, there was really no evidence of any enlargement at all.

10 His Honour also found that there had been an impermissible intensification of the use of the land as a quarry since 3 February 1986, the date when s. 109(2) was added to the Environmental Planning Assessment Act. Once made, I regret to say, his Honour’s finding seems to me unjustified.

11 One measure of ascertaining whether there has or has not been an intensification of use of a quarry is to have regard to its output. In this case, there was no contest between the parties but that the quarry output of 7,000 tonnes which was being produced in 1986 had never been exceeded, and indeed that in recent years the output was very much less.

12 His Honour made a series of findings on the intensification issue. He found that (a) the material now being extracted from the quarry was of a different texture to that being extracted in 1986, (b) it was impossible to produce fine roadbase without a crusher and screener (which was not used before 1986), and (c) fine roadbase material was not produced from the quarry in 1986. These findings necessitated, according to his Honour, a finding of intensification.

13 The difficulty is that none of these three findings can be supported. On these issues the evidence of the appellant consisted of the oral and affidavit evidence of the appellant himself (who – curiously enough, in view of his Honour’s findings, does not seem to have been disbelieved), and Mr Alderson, an engineer. Mr Alderson had been the Council’s engineer from 1986 to April 1993, during which time he regularly visited the quarry on behalf of the Council in order to obtain roadbase material. For the Council, evidence was given by a Mr McElroy, an engineer.

14 There is no doubt, of course, that at all stages – before 1986, during 1986, since 1986, and today – the quarry has been in operation and the material produced by it has been used as roadbase. The Council well knew this, as during the whole of that time it purchased the quarry’s product and used it as roadbase; it was, in fact, the quarry’s biggest customer. One should have thought that these incontrovertible facts, taken alone, would have decided the issue of intensification in favour of Mr Archibald, whatever his truth about the matters listed (a), (b) and (c) above.

15 However, in view of his Honour’s findings, it is necessary to examine each of those findings. As far as (a) is concerned, the foundation for this finding is some musings by Mr McElroy, a witness who had never visited the quarry. On the other hand, Mr Alderson, who knew the quarry intimately and remembered it well, gave clear evidence to the contrary, and produced a written report by a geologist called Stephen Abbott, who was apparently not required for cross-examination. Mr Abbott’s expert opinion concerning the geology of the quarry entirely negatived Mr McElroy’s speculations (and Mr McElroy’s evidence on the matter never rose above the level of speculation).

16 As far as findings (b) and (c) are concerned, the facts are that fine roadbase was produced before and after 1986 – and purchased as such by the Council. As far as fineness was concerned, this quality was largely achieved before 1986 by running a bulldozer over the rock. Sometime after 1986 a new machine was used, a crusher. It did the same job, only more economically. To modernize a plant’s production in this manner cannot, in my view, constitute an “intensification”.

17 It was also submitted that an increase in noise since 1986 constitutes a prohibited “intensification”. I doubt if it does, but that is presuming it exists. The only scientific evidence given on the question would indicate it does not exist.

18 Finally, there is his Honour’s conclusion that at the moment Mr Archibald was operating two uses at the quarry – one winning the material and the other crushing it. Both operations were conducted both before and after 1986. They cannot be considered two independent uses of the land. Crushing the material is clearly ancillary to winning it and could not exist without the continuance of the quarry.

19 In this regard, his Honour made the following declaration:

“The extractive industry use carried out on the land has been intensified from a single purpose use of winning extractive material with ancillary crushing to two separate uses without the consent of the Byron Shire Council.”

20 This betrays some confusion of thought. It elides two distinct legal concepts: intensification and the character of the continued use. There were two distinct grounds of complaint alleged by the Council against Mr Archibald. Each depends on different considerations. As Mr Robertson submitted:

“Arguably, it would not matter that product processing was not an independent use, if it had been intensified in the relevant sense. By the same token, if that use is now an independent use but was an ancillary use in 1986, it is not a continued use and s. 109(1) has no application to it at all. If so, it would be unnecessary to consider the question of intensification under s. 109(2)(c).”

21 In my view, the appeal should be upheld and the following orders made:-

i. That the appeal be allowed with costs;

ii. That the declarations and orders made by Cowdroy J on 13 December 2001 be set aside;

iii. In lieu thereof, an order that the proceedings be dismissed with costs.

22 SHELLER JA: I have had the benefit of reading the judgment in draft prepared by Meagher JA. His Honour has set out the essential facts. Many I need not repeat.

23 In these class 4 proceedings begun in the Land and Environment Court in 1999 the Byron Shire Council (the Council) sought declarations that a quarry known as “Palmwoods Quarry” had expanded laterally from the area used immediately before 3 February 1986 and that the use of the quarry had intensified from a single purpose use of winning extracted material from ancillary crushing, to two separate uses consisting of crushing, screening and processing the extracted material, without the consent of the Council. The Council also sought an order restraining the respondent to the application, Kevin Archibald, from using or causing or permitting the use of the land for the purpose of an extractive industry beyond that used immediately before 3 February 1986 until consent of the Council had been obtained.

24 The northern boundary of the quarry was Palmwoods Road. From that boundary the quarry ran up steeply rising ground in a southerly or south easterly direction narrowing as it went. Its southern most point was described as the “top of the quarry”. At the quarry’s south eastern boundary there was an area of land where, according to Mr Archibald, between 1993 and 1995 a landslide had occurred. This area of land was referred to as “the slip”. The area was denuded of vegetation. Mr Archibald said that an officer of the Department of Mineral Resources and Mining advised him to step the landslide area for safety reasons. He said that the only material extracted from that area was that necessary to step the face in accordance with his instructions. While the trial Judge made no finding about this, and Mr Archibald was not asked about it, it was conceded on his behalf that material from the landslide had been absorbed into the quarry processing.

25 The quarry had operated continuously since 1955. It first became amenable to planning controls in 1968 when IDO No 1, Shire of Byron, came into force. Despite the applicable zoning under the Byron LEP 1988 having the result that extractive industries on the quarry site were permissible only with the consent of Council, the quarry continued to operate without Council’s consent because it had the benefit of a continued use for a lawful purpose, pursuant to s109 of the Environmental Planning and Assessment Act 1979. Section 109(1) provides that nothing in an environmental planning instrument operates so as to require consent to be obtained under the Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under the Act being obtained. From 3 February 1986 s109(2) came into force. Relevantly, that subsection provides:

“Nothing in subsection (1) authorises:
(b) Any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c) Without affecting paragraph ... (b) any enlargement or expansion or intensification of the use therein mentioned.”

In these proceedings the Council relied on paragraphs (b) and (c).

26 In Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 at 587 Priestley JA said:

“The effect of s109, as it was interpreted in light of the High Court decisions, was radically changed by the addition to it, operative from 3 February 1986, of subsection (2). That subsection requires that ‘use’ be understood in a much narrower sense than before; its effect was, in my opinion, to limit the continued use previously permitted by s309 and s109 without consent, to the actual use of the land on the day when the planning laws otherwise would have affected it, that actual use being confined to the land actually (as opposed to potentially) physically being used, and the extent of the use of that land likewise being limited to its extent on that day.”

27 The questions for consideration in these proceedings were whether the area of the quarry and hence its use had so expanded after 3 February 1986 and whether there had been intensification of its use. The trial Judge, Justice Cowdroy, answered both questions in the affirmative.

Lateral expansion

28 The Council called evidence to show that the area of the quarry physically used had expanded. Mr Archibald called evidence that it had not or, if it had, only marginally. The trial Judge referred to some of this evidence namely that of Dr Brian Button, Managing Director of Agricultural Recognisance Technologies Pty Ltd, and Associate Professor in Earth Observation Systems at the University of Canberra, Mr Scott Thompson, a surveyor, both relied upon by the Council and Mr Colin Loomes, another surveyor, relied upon by Mr Archibald. A lot of this evidence was technical and complex. His Honour’s review of it in his reasons for judgment was brief. The trial Judge said:

“16. Mr Thompson concluded that the cleared area was extended by approximately 6,500m² between the clearing shown in the aerial photograph taken on 19 January 1990 compared to that on 15 August 1997. Mr Thompson acknowledged that a margin of error of about 5 metres in radius around each of his selected survey points could exist, resulting in a 15% margin of error in his conclusion.”

29 Of Mr Loomes his Honour said:

“17. Mr Colin James Loomes, a surveyor, provided evidence on behalf of the respondent. Mr Loomes prepared a survey plan of the site. Mr Loomes was able to identify the southern most corner of the quarry from a survey undertaken in 1983. Although Mr Loomes described possible margins for error, he could not dispute the conclusion of Dr Button and Mr Thompson that there had been a major expansion of the quarry.”

30 On the Council’s claim that the quarry had expanded laterally, the trial Judge found as follows:

“18. The expansion assessed by both Dr Button and Mr Thompson may not have occupied the entire area of 6,500m² because part of such expansion included an area of landslip as was asserted by the respondent and not contradicted by the Council. However the Court is satisfied that the survey evidence establishes that the area of quarrying increased between 19 January 1990 and 15 August 1997.
Findings on enlargement of area of use
19. The Court is satisfied that expansion of the quarry has occurred without the consent of the council and is thereby no longer a lawful use pursuant to s109 of the EP&A Act.”

31 On the appeal to this Court from the trial Judge’s decision the appellant, Mr Archibald, submitted, and the Council conceded, that the trial Judge misunderstood Mr Thompson’s evidence. The only reference made by Mr Thompson to the area of 6,500m² was in his affidavit of 28 September 2001, repeated in his oral evidence, and was, as I understand it, that the cleared area of the quarry, at the date of the aerial photograph taken on 19 January 1990, was 6,500m². This estimate was subject to an error margin of plus or minus 15 per cent. That was the area which was being actually physically used for the quarry before the expansion which his Honour found to have taken place between 19 January 1990 and 15 August 1997.

32 Dr Button’s evidence could be described as an expert interpretation of satellite imagery to determine the approximate area, location and date of vegetation removal or loss. In re-examination Dr Button said that the major change occurred between 1993 and 1995. During that period the quarry site grew from about 8,600m² to 11,100m², that is to say 2,500m². This evidence seems inconsistent with that of Mr Thompson.

33 As Meagher JA has observed, apart from Mr Thompson, only Mr Loomes went to the site. In August 2001 he surveyed the areas of the quarry site including the old tracks and slip area. He attached a copy of the resultant survey plan dated 28 August 2001 and said in his affidavit:

“I am confident that the location of the quarry is relatively accurate since the southern most corner of the site shown as a tree on the plan corresponds with a notation on a survey undertaken by an employee of mine in 1983 as the ‘top of the quarry’.”

He said that the 1983 survey was approximate only and undertook to acquire a rough volume of material available in the quarry. It was undertaken using a compass for orientation and electronic measurement for distance and he estimated the accuracy of the survey to be plus or minus 3-4 metres.

34 In his affidavit of 28 September 2001 Mr Thompson said that he had been requested by the Council’s solicitors to mark out a specific area of the quarry. He was provided with the aerial photograph of the quarry dated 19 January 1990 which showed the tree line of the quarry marked in red and “part of the same aerial photograph overlaid with an earlier photograph under the heading of ‘Aerial photography 15/08/97 overlaid with Aerial Photography from 19/01/90’ (sic)”. The first photograph became annexure “A” and the second annexure “B”. He placed fourteen survey marks on the site on 17 August 2001 which he said showed the approximate position of the red line on attachment “A”. Annexed and marked “C” was a sketch plan overlay which could be superimposed onto annexure “A” to show the position of the survey marks placed on the site as they related to this aerial photograph. Annexure “D” was a composite plan combining the overlay and the 1990 photograph.

35 Mr Thompson described the methodology adopted to locate the pegs on the site as follows:

“(a) A field survey was carried out to locate the two bridges and the section of Palmwoods Road in between these bridges clearly visible features on 1990 aerial map and adjacent to the quarry;
(b) this field survey data was then scaled down to best fit the 1990 photograph using the computer surveying software packaging GEOCOMP;
(c) this enabled the position of the cleared area from the 1990 aerial photograph to be related by measurement to the identifiable features on the photograph, namely the bridges and the road;
(d) the position of the line defining the cleared area was then scaled in relation to the two bridges and the road formation. This scaled position was then input into the surveying software package; and
(e) the new file contains the existing bridge locations, road formation and line defining the cleared area was then re-scaled to ground distances for site markings.”

36 This led to the calculation of the 6,500m². As his Honour said Mr Thompson acknowledged that the position of the pegs on site were approximate positions only and a margin of error of approximately 5 metres radius around each peg should be adopted. The area calculation was also an estimate and he adopted a 15 per cent margin of error for this figure.

37 Mr Loomes’ 2001 survey plan showed “area quarry site by me and Archibald about 8,800m².” Another area to the south east of about 700m² was identified as “slip”. Mr Loomes said that Mr Archibald had indicated that area to him. He was asked about the “areas on the southern end of the overall scar but within the dotted line” on the plan, that is to say the area excluding the slip and the area of quarry and said: “Well that’s an area of some substantial trees but mostly regrowth. I don’t – haven’t been – hasn’t been quarried to any great extent recently, if at all.” Asked about the 8,800²m area, which excluded the area of the slip and “those access roads and so on at the southern end” he said: “it was just the area of the excavation area.”

38 Under cross-examination Mr Loomes was asked by the trial Judge whether there was anything that made him believe that the area of the slip was being “mined, used for a quarry”. He said: “I think there has been work done on the slip area since it’s been slip but I have no knowledge really of what occurred and how it occurred. I think it might have been cleaned up. There is a track up there, a machinery track.”

39 In his oral evidence Mr Loomes said this about the 1983 survey:

“Well it was a survey. We were instructed apparently by the council – it’s a bit long ago for me to remember but we were instructed by the council I understand to work out a very rough volume of the material that was available in the quarry site and we did some contours, some very rough contours, some very rough levels, in order to try to do that. We abandoned that incidentally because we couldn’t determine exactly what the final profile of the quarry was going to be so we never actually came to conclusion with that survey but that’s what we anticipated it to be, a volume survey – a volumetric survey rather than a boundary survey.”

40 In the course of cross-examination by the solicitor for the Council, Mr Loomes said that the tree which had been marked at the southern point of the quarry site in the 2001 survey plan was about where his colleague had marked the top of the quarry back in 1983.

41 Mr Loomes said this about Mr Thompson’s affidavit:

“8. In paragraph 3 of the Thompson Affidavit certain photographs upon which Scott Thompson has relied are referred to. Photographs are in general inherently distorted by the fact they provide a perspective view only and are only ‘scale’ stable at the centre point of the photograph and cannot be used as a mapping or measuring tool unless rectified by a dedicated computer software programme or 3D photogrammetric transformation. Both these procedures require control points on the image to be co-ordinated in 3 dimensions. Areas to be mapped which have significant height differences, such as a quarry site, are most affected by distortion.
9. In order to provide aerial photographs which can be made relatively distortion free and used as a measuring tool, it is necessary that:
(a) the photography be dedicated to the purpose of the project – not a snap shot and be site specific;
(b) be taken from the vertical;
(c) be taken by a quality lens that has its calibration qualities known;
(d) have fiducial marks on the image, particularly the centre point or Principal Point; and
(e) be taken by a quality camera using fine film emulsion to allow better definition.
I am not aware of any of the above parameters being applied to these photographs (or any photocopies of the photographs).
10. In paragraph 2 of the Thompson Affidavit it is stated that he has been asked to mark out a specific area of the quarry. He has been instructed to mark lines depicted on the photographs and has attempted to rectify them by measuring between just two control points and therefore in one direction only, being basically east-west. No attempt has been made by him to provide a north-south control and the ‘computer’ programme he referred to in paragraph 7(b) of the Thompson affidavit is merely surveying and engineering based and is not capable of rectifying images. He does not indicate whether he applied a factor because of substantial height differences on the site and I believe his estimate of error quotient of + 5 metres is probably a minimum.
11. Without benefit of the history of the photographs it is my opinion that they generally portray a pictorial reference only and cannot be used as a measuring tool.”

42 Mr Thompson was asked this in cross-examination:

“ATKIN: Mr Thompson I take it you have read Mr Loomes’ affidavit? A. Yes.
Q. And you’re aware of the matters that he raises in comment about your process? A. Yes.
Q. Mr Thompson the overlaying of the photographs that you’ve done, referred to in your affidavit, that’s A and B, did you do the overlay or did someone else do that overlay-- A. This annexure?
Q. Yes? A. That one?
Q. Yes? A. I overlaid them and then they were colour photocopied down in the photocopy shop.
Q. The photographs that were taken, the original photographs A and B, that is the one taken in 1990 and the one taken in 1997, were you able to plot the centre point of those two photographs? A. No.
Q. Did you rectify the two photographs, in other words try to-- A. No.
Q. –reduce them to the same scale and the same-- A. No.
Q. You’ve located the two bridges and you’ve given some evidence about that and you’ve measured the line which is approximately an east west line? A. Yes.
Q. And you said that you couldn’t do a north south line because you couldn’t identify any particular reference points for that north south line? A. Well not reliable points, yeah, there’s very – a lot of trees.
Q. Now you then said that the field survey data which you took, I assume, was scaled down to best fit the 1990 photograph and the way you did that was to use a geo comp program? A. Yes correct.
Q. That’s a program that doesn’t rectify the images? A. No definitely not.
Q. What’s that program generally used for? A. It’s just a surveying based software used for--
Q. Engineering or? A. It does have an engineering aspect to it.
Q. Yes? A. Just used for normal calculations and surveying associated types of number crunching.
Q. Have you allowed in your calculations anything for the height differences for example the level of the road and the top of the quarry? A. No.
Q. It’s a fairly significant difference in height though isn’t it, between the two points? A. Quite a deal, yes.
Q. You said in your affidavit that you had a margin of error of approximately five metre radius around each peg should be adopted. The pegs you’re referring to, are they the points along the red line? A. They’re the points that I placed on the site.
Q. That you placed on the site which is shown on your-- A. Shown on that overlay, annexure C I think.
Q. On the overlay? A. It appears on all of the plans. It’s the line that I physically marked on the side.
Q. Yes I understand, yes, thank you. And you said you adopted a 15 per cent margin of error for this figure. When you say this figure, are you referring to the overall area calculations? A. Yeah.
Q. Or are you talking about the margin of error or some other figure? A. That was the area calculation.
Q. So the total area calculation for you is, that you’ve made, is 6,500 square metres? A. Yes that’s correct.
Q. And there’s a 15 per cent margin of error, that’s plus or minus? A. Plus or minus.
Q. Thank you. Mr Loomes in paragraph 9 of his affidavit, provides certain comments as to how you would make distortion free aerial photographs? A. Yes.
Q. And he listed a number of things. Do you disagree with those suggestions? A. No not at all.”

43 On its face, and in the light of what was put to Mr Loomes in cross-examination, it would be hard to deny that in August 2001 the excavated area of the quarry was the 8,800m² shown in his survey plan. This is by far the surest foundation for determining whether that excavated area included any lateral expansion of the excavated site which had taken place after 1990 as the trial Judge had found.

44 The survey plan is, of course, inconsistent with Dr Button’s conclusion that by 1995 11,100m² was being quarried unless the area determined by Dr Button included the slip area and some other unspecified areas where there were no trees but no quarrying.

45 The 1997 aerial photograph (Exhibit B) showed a cleared area which on its face appears to accord with Mr Loomes’ quarry site area and slip area. The slippage may extend further south but that is difficult to tell.

46 Another exhibit was Exhibit K prepared by Mr Thompson. It purported to overlay Mr Loomes’ survey to demonstrate graphically, as I understand it, that while in 2001 the excavated area was 8,800m², in 1990 it was the 6,500m² calculated by Mr Thompson. Of course this calculation is inconsistent with Dr Button’s calculation that by that time the quarry area was between 8,500 and 8,700m². Furthermore, the exhibit is suspect because it depends upon the work of Mr Thompson which had been criticised by Mr Loomes and seems to show the 1990 excavation work as extending north of the northern boundary road, Palmswood Road. Furthermore, there is the evidence from Mr Loomes that in 1983 the quarrying had extended as far south as the tree which is well south of the southern line suggested by Mr Thompson.

47 In his reasons for judgment Cowdroy J said that to establish that the area of the quarry had “substantially increased” since 11 September 1987 the Council relied upon Dr Button’s evidence. He said that Dr Button used “commercially available satellite imagery of ‘infra-red reflectivity’ to determine whether there had been any lateral expansion of the quarry since February 1986.” Dr Button had interpreted the results of satellite imagery of the area which had been recorded by satellite and processed by computer.

“Using such data, he concluded that there were two periods of significant expansion in the area of the quarry. The first was during the period between January and September 1990 in which the shape of the quarry ‘grew from an almost triangular shape to a regular shape trapezoid to quadrilateral plane figure of which two sides are parallel’. Dr Button said that the area of the quarry increased mainly towards the south east.”

48 His Honour next referred to the second period of expansion which Dr Button considered occurred between 1993 and 1995 “when there was a considerable increase in the land cleared for the quarry area which is unmistakable upon visual as well as statistical analysis.” This area of expansion was also in a south-south-easterly direction. The trial Judge added: “Significantly, Dr Button’s assessment did not rely upon personal observation or assessment. Rather, Dr Button’s conclusions were based upon the result of calculations by computer of the data derived from satellite observation.” That was the trial Judge’s description of the complex technical evidence given by Dr Button. His Honour made no mention of extensive cross-examination of Dr Button directed to the limitations and unreliability of his conclusions.

49 For example, of the 29 per cent expansion of the quarry derived from the difference between 8,600m² and 11,100m² said to have occurred and to have been the major change between 1993 and 1995, Dr Button said:

“So my clear conclusion is most of that 29 per cent, by far the majority, is due to expansion of the quarry. And in a particular direction, it is not just expansion outwards, it is virtually solely expansion in the south south easterly direction.”

50 That was an expansion into what was described by Mr Loomes as the slip area. Dr Button had never been to the site. He accepted in cross-examination that if the area had been the subject of a landslip his methods did not establish that the apparently cleared area was actively working as a quarry.

51 I have quoted paragraphs 16, 17 and 18, the parts of the reasons for judgment in which the trial Judge sought to explain the finding contained in paragraph 19. The trial Judge, with due respect to him, never came to grips with the technical arguments supporting or throwing doubt upon the expert evidence. Mr Thompson had not concluded that the cleared area was extended by 6,500m². Had he done so, as his Honour thought, that conclusion was irreconcilable with what Dr Button said. The impression I have is that the trial Judge regarded it as sufficient that he found there was some expansion. But, as I have indicated, the Council was seeking injunctive relief in the form of an order restraining Mr Archibald from using or causing or permitting the use of that part of the land outside the area actually physically used immediately before 3 February 1986 for the purposes of an extractive industry unless and until consent had been obtained.

52 It is trite law that an injunction should not be granted unless couched in completely unambiguous language whereby the recipient can know exactly what that recipient is obliged to do or may not do; see generally Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th ed, page 813. Such relief could only be granted if his Honour defined with precision the area of quarrying said to extend beyond the area of permitted use. This in turn required the trial Judge to choose, if he accepted any of the experts’ evidence on this, which he accepted and why. With due respect, simply to recite passages of inconsistent evidence, in one case entirely misunderstood, and then make a finding, is not sufficient. Further it places this Court in the invidious position of being asked itself to weigh that evidence and make findings about it. This difficulty raises the question of whether this Court had any choice but to send the matter back for re-trial.

53 In Moylan & Ors v Nutrasweet Company & Ors [2000] NSWCA 337, in a judgment with which both Beazley and Giles JJA agreed, and also in Mistral International Pty Ltd (formerly known as Ringgrip Pty Ltd) v PolsteadPty Ltd [2002] NSWCA 321, in a judgment with which both Meagher and Beazley JJA agreed, I referred to what was said in the English Court of Appeal in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 and Eckersley v Binnie [1988] 18 ConLR 1 at 77-8. In Moylan at para 64 the trial Judge was criticised for saying:

“I have had the advantage not only of hearing the various witnesses give evidence but also of seeing the way in which they reacted to the questions that they were asked. Having done so, I prefer the expert evidence that was given for the defendants to that which was given for the plaintiff.”

54 Where a dispute, such as this one, involves something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other. This is particularly so where there is disputed expert evidence. In the present case, the parties were entitled to be told if Dr Button’s estimates were to be accepted, on what basis they were to be accepted, in preference to those of Mr Loomes and Mr Thompson. This had to be done if the Court was properly to perform the duty of stating with certainty the extent to which the respondent was entitled to rely upon continued use.

55 However, like Meagher JA, I am persuaded that the evidence of Mr Loomes, largely unchallenged, as to the area of excavation by August 2001, had to be accepted. That evidence demonstrated that there had been no expansion in the quarry to the south since 1983. What may have been treated, particularly by Dr Button who had never visited the site, to an expansion was an area denuded of trees by a landslide.

56 Although some belated attempt was made on behalf of the Council to rely on the fact that in the course of re-conditioning the slip area as required by the Department of Mineral Resources and Mining some material had been extracted and sold - the extent to which that occurred, and where it occurred, is unknown and there was no suggestion that it was continuing at the time these proceedings were begun. As I have said the trial Judge made no finding about it.

57 In my opinion, the evidence of both Dr Button and Mr Thompson should have been rejected as unreliable and inconsistent with Mr Loomes’ unchallenged evidence. I do not understand from any of the material how it could be said that Mr Loomes “could not dispute the conclusion of Dr Button and Mr Thompson that there had been a major expansion of the quarry.” This comment is unfounded.

58 The Council filed a notice of contention that the decision and orders of the trial Judge should be affirmed on grounds other than that the expansion of the quarry may have occupied the entire area of 6,500m². These grounds were that the area was the difference between the area of the quarry on 3 February 1986 and the area as at the date of commencement of the proceedings. It was contended that Cowdroy J should have held that the expansion was the area beyond that which was used for the purposes of the quarry on 3 February 1986 and that the cleared area of the quarry was extended by the amount shown in the aerial photograph taken on 19 January 1990 compared to that taken on 15 August 1997 (plus or minus 15 per cent). In my opinion, such a finding is not open on the evidence before the Court particularly having regard to Mr Loomes’ evidence, which was uncontradicted and unchallenged.

Intensification of use

59 Cowdroy J said that, in support of its submissions that the respondent had intensified the use made of the quarry, the Council relied upon a change in the machinery and equipment used at the quarry since 1986. This change enabled the quarry to produce road base material which could not have been produced using conventional equipment involved with extraction activities. His Honour referred to evidence given by a neighbour of the quarry, Mr Anton Vanderbyl, about machinery used before 1990 and after 1990 and about noise. He also referred to the evidence of Ms Janelle Bancroft, a Senior Environmental Health Officer of the Council, who had done a series of noise tests. Importantly, the trial Judge referred to the evidence of Mr McElroy, a consultant engineer, and Mr Gregory Alderson, who disagreed with Mr McElroy, and Mr Ross Palmer, who reported that a noise management plan had been adopted by Mr Archibald. His Honour did not make any findings one way or another about this evidence. He did refer to what was said by Mason J in Norman v Gosford Shire Council (1975) 132 CLR 83 at 86 and opined that ordinarily the upgrading of machinery more effectively to implement business processes would not constitute an intensification of a use of land.

60 King v Lewis & Anor (1991) 74 LGRA 362 at 370 (on appeal (1995) 88 LGERA 183) concerned the question of whether the site of a quarry was being used as such where rock previously quarried was stockpiled and then drawn from stock and disposed of offsite. Subsequently, quarrying resumed and it was said the use had intensified. In that context, Cripps J observed (74 LGERA at 370) that: “the only sensible way to measure ‘intensification’ with respect to a quarry is to measure output.”

61 After referring to several decisions Cowdroy J said:

“34 As a result of this conflicting series of decisions of the NSW Court of Appeal only few principles can be stated to be authoritative. The first is that the principle in Norman stated by Mason J is now of limited application in view of the enactment of s109(2) of the EP&A Act (Vaughan-Taylor; Houlakis and Teakdale). Secondly, an upgrading of machinery or a greater productive output can be fairly characterised as an ‘intensification’ of the use ( King v Lewis: Rockdale MC v Clark ) though it is a better characterisation to describe such change as an ‘ enlargement ’ of the use (King v Lewis: Houlakis and Teakdale ).”

62 South Sydney City Council v Houlakis and Teakdale Pty Ltd (1996) 92 LGERA 401, was a case about hotel premises which pursuant to s109 of the Environmental Planning and Assessment Act could lawfully continue to be used as a hotel without development consent. In 1995 the New South Wales Licensing Court permitted an extension of hours of operation. The Council claimed that the extended hours of operation had given rise to an intensification of use which required development consent. This Court, Clarke and Beazley JJA and Santow AJA, held that extended hours of operation were an enlargement or expansion or intensification of use within the meaning of s109(2)(c) of the Act. At 404 Clarke JA inclined to the view that the increase in trading hours effected an intensification because the impact of the use of the premises as a licensed hotel spread over twenty-four hours would have different consequences in town planning terms to the amenity of the neighbourhood than those activities within the earlier permitted hours. Beazley JA and Santow AJA concluded that the extension of trading hours was more appositely dealt with by reference to the expression “enlargement” in the section.

63 Cowdroy J’s findings were expressed as follows:

“35 The Court is satisfied that the activities now conducted at the quarry represent an intensification or enlargement of the use which existed prior to 3 February 1986. Whilst a form of crushing by a bulldozer was carried out during the earlier period of the quarry’s operation, the current crushing activities are now of a different kind. These involve crushing rock followed by screening. Because the raw material now being won is of a different texture to that originally extracted, it is not possible to produce crushed material namely fine road base suitable for road and driveway construction without a crusher and screener. Both crushing and screening is undertaken using equipment specially designed for those purposes, and in neither instance was such equipment used at 1986. Fine road base material was not produced from the quarry in 1986. The Court is satisfied that the [sic] and the production of such material represents an ‘ intensification of the use’ within the meaning of s109(2)(b) of the EP&A Act.”

64 Declaration 2 made by the trial Judge was:

“2. The extractive industry use carried out on the land has been intensified from a single purpose use of winning extractive material with ancillary crushing to two separate uses without the consent of the Bryon Shire Council.”

65 The output of the quarry had not increased since 1986. Indeed, if anything it had declined. The machinery had understandably changed and was more efficient. In particular, instead of using a bulldozer for the purpose of crushing the quarried material to produce road base, a crusher and screener were used. This was said to be an intensification.

66 While in the present case there was some evidence of increased noise to which the trial Judge referred, he made no finding about it. There was evidence that this had been abated by a noise management plan which Mr Archibald adopted. His Honour did not found his conclusion about intensification of use on this factor. He founded it in part upon his view that the current crushing activities were of a different kind from those used during the earlier period. This involved crushing rock followed by screening. He also founded it on the conclusion that the raw material being extracted was of a different texture and that the crushing and screening were undertaken using equipment specially designed for those purposes, equipment not used in 1986.

67 The trial Judge’s finding that the raw material being extracted was of a different context seems to have been based on the evidence of Mr McElroy who first inspected the quarry site in June 1999. His information about the material extracted and crushed before 1990 was based on what he described as information and belief. It was contradicted by the evidence of Mr Alderson, who had first visited the quarry site early in 1986 and thereafter had visited it about eight or nine times. Mr Alderson said this:

“11. I disagree with Stephen McElroy, in his affidavit point 7, that the material extracted before 1990 was only the more weathered basalt. It is not normal practice to blast the softer weathered basalt as the stone breaks down and shatters. The variability of the weathered basalt means there is no control over the blasting and it would be very dangerous if attempted. The blue or hard basalt only is blasted, where control, because of the uniformity of the stone, is better.
12. I agree with Mr McElroy that mechanical processing allows a better control of the quarry product to meet the more stringent RTA specifications and Quality Assurance requirements, which are now used by RTA, Councils and other private road contractors. However, these more rigid specifications were not applied by Byron Shire Council in 1986 for their local road network. The more rigid testing that progressively came to the Byron Shire Area in the 1990’s meant that particle size and distribution, and plasticity became parameters that had to be measured before material could be accepted on a work site. The mechanical crusher, such as observed on the site by Mr McElroy, (green or yellow) allowed blending of material to achieve the range of particle size required by the specifications. The mechanical crushing, by dozer, carried out on site in 1986 resulted in a more random particle distribution.
13. The operations described by Mr McElroy are generally correct however, the green machine in his photos is only a screener not a crusher and screen. This indicates to me that the raw quarry product does not require crushing.
14. Mr McElroy states in point 17 that the ‘material to be excavated at the quarry now is harder’ I would disagree. In my opinion the blue basalt, blasted and crushed on site in the mid 1980’s is geologically the same as the basalt now being crushed and screened.
15. Mr McElroy does not comment on the rate or material processing that could be undertaken with the older style of mechanical processing. It is likely that this would be relatively low in comparison to a mechanical crushing and screen unit such as the one owned by Byron Shire Council. I would suggest that a production rate figure of about 25m³ per day would be realistic. Thus, to achieve the same quarry processing quantity the dozer and loader would have to work on the site for about 8 times longer.”

68 Mr Abbott, a well qualified geologist, said this:

“5. I visited the Palmwoods quarry on the 14th of August 2001 and have made the following geological observations:
a. The quarry is situated at the foot of a north-trending narrow ridge that slopes into Stony Creek.
b. The ridge, including the material exposed in the quarry, consists of a geological formation of Tertiary age called the Lamington Volcanics.
c. The rock exposed in the quarry is basalt that varies from unweathered to moderately weathered. Two or three steeply dipping basaltic dykes, between 10-30 cm thick, are a minor lithology and will not be discussed further.
d. The unweathered basalt is variably light grey to dark grey in colour, very fine grained and highly jointed. It is of uniform texture, structure and composition at all localities where this material is exposed in the quarry.
e. The weathered basalt is yellowish or reddish brown in colour and the intensity of chemical weathering ranges from slightly weathered to moderately weathered. The weathering process involves the alteration of the minerals in the rock to soft clay minerals. Iron oxides are another product of the weathering process and its presence is indicated by the reddish and yellowish colouration of the weathered rock. In addition, the weathering process exploits and enhances the jointing pattern, and imparts a highly fractured appearance to the rock.
f. The only difference between the weathered and unweathered material is the degree of weathering. Putting the effects of weathering aside, the uniformity of texture, structure and composition indicate that the basalt exposed in the quarry was probably emplaced as part of a single lava flow.
g. The effects of weathering extend from the land surface and decrease with depth. Accordingly, the boundary between weathered and unweathered rock in the quarry broadly follows the shape of the land surface. The unweathered basalt occurs in the areas of deepest excavation, both down from the top of the ridge, and in from the sides of the ridge.
h. The unweathered basalt exposed by excavation at road level, at the foot of the ridge, in the northern most part of the quarry, occurs at a relatively shallow depth. This is the result of natural erosion of the valley floor associated with the adjacent Stony Creek and is thus an exception to point f.”

69 It was submitted on behalf of Mr Archibald that matters such as the texture of the extracted material, the ability to produce fine road base without a crusher and a screener and the fact, if it were a fact, that fine road based material was not produced from the quarry in 1986 - were not facts relevant to an assessment of the character of the activities protected by the continued use. Each descended to a level of detail inconsistent with the generalised characterisation of the purpose of the continued use. But the trial Judge’s findings cannot be justified. In my opinion, it was not open to the trial Judge, without any explanation, to favour Mr McElroy’s evidence over the far better qualified evidence of Mr Alderson and Mr Abbott. There was no evidence to support the contention that the suggested change in texture required, as a matter of necessity, different machinery to produce the crushed material. Mr McElroy conceded it was more economical to use the new machinery and that the harder extracted material could be crushed using the bulldozer crushing method, but that this would not be economical. Mr Archibald used the bulldozer crushing method both before and after February 1986. Further Mr Archibald gave uncontradicted evidence that the different grades of material including fine road base were produced from the quarry before 1986.

70 In the present case the continued use can be characterised as that of a quarry for the extraction, production and sale of road base. Section 109 permitted the continuation of that use without Council consent. Truly the section does not authorise any expansion of the area of land used from the area actually physically and lawfully used before the coming into operation of the relevant instrument or any enlargement or expansion or intensification of that use. But it still remains important to remember, as Kitto J pointed out in Shire of Perth v O’Keefe (1964) 110 CLR 529 at 535 that particular matters relating to the way in which the use is continued such as, in the present case - more efficient means of extraction or treatment to produce the same product, directs attention away from the character of the permitted use to a “meticulous examination of the details of processes or activities” and goes beyond any necessary or relevant inquiry.

71 It may well be that if in this quarry different machinery had been brought in to increase output and had achieved that effect there would, within the meaning of the section, be an intensification of the use. Here there was no increased output and no suggestion that the new machinery was brought in to achieve this. All that changed was the efficiency of the method of production. The use remained the same.

72 The trial Judge’s declaration, without explanation in his reasons, was that the extractive industry use had been intensified from a single purpose use of winning extractive material with ancillary crushing to two separate uses which his Honour did not identify. In my opinion, it is beyond argument that there remained but one extractive industry use. To that use crushing and screening were ancillary and subsidiary.

73 I agree with the orders that Meagher JA has proposed.

74 BEAZLEY JA: I agree with Sheller JA.

*****

Last Modified: 11/07/2003