Archibald v Byron Shire Council

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…