Australian Native Landscapes Pty Ltd v Warringah Shire Council

[1989] NSWLEC 155

Land and Environment Court

of New South Wales

CITATION:

Australian Native Landscapes Pty Ltd v Warringah Shire Council [1989] NSWLEC 155

PARTIES:

APPLICANT
Australian Native Landscapes Pty Ltd

RESPONDENT
Warringah Shire Council

FILE NUMBER(S):

10195; 10256 of 1988

CORAM:

Bignold J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Double Bay Marina Pty. Ltd. v. Woollahra Municipal Council (1985) 54 LGRA 313;
Jandra Blue Metal Quarries Pty. Ltd. v. Rainbow Flat Quarry Environment Committee (unreported 18th November, 1988).;
Foodbarn Pty. Ltd. v. Solicitor General (1975) 32 LGRA 157 at p.161.

DATES OF HEARING:

DATE OF JUDGMENT:

02/08/1989

LEGAL REPRESENTATIVES:

APPLICANT
Mr Patrick Soar
RESPONDENT
Mt Gatenby

JUDGMENT:

A. INTRODUCTION

These are two appeals under s.102(5) of the Environmental Planning and Assessment Act 1979 relating to a development consent granted by the Respondent on 18th December, 1979 for the use "for the purposes of rural industry" of land known as Portion 77 and Part Portion 105 situate at Myoora Road, Terrey Hills.

Each of the appeals seeks a modification of a condition of the aforesaid development consent - one (Condition 8) limiting the trading/operating hours of the permitted development and the other (Condition 25) limiting the scope and content of the permitted development.

By consent the appeals were heard together. Again, by consent, related class 4 proceedings (No. 40055 of 1988) in which the Respondent seeks to enforce by injunction the terms and conditions of the aforesaid development consent were adjourned to await the outcome of the two class 1 appeals.

B. THE DEVELOPMENT CONSENT THE SUBJECT OF THE

S.102 MODIFICATION APPLICATION

The relevant development consent was granted in December 1979 following the judgment given by Kearney J. in March 1979 in Supreme Court proceedings (No. 1937 of 1977) brought by the Respondent against Mr. Patrick Soars, seeking declaratory and injunctive relief in respect of the development activity then being carried out on the aforesaid development site.

At the time of His Honour's judgment Mr. Soars had applied for development consent in respect of the development then being carried on and the question raised for decision was "whether or not the activities fall within the scope of 'rural industry' as defined by the (Shire of Warringah Planning Scheme) Ordinance" (p.1 of the aforesaid judgment).

After describing in some detail the nature of the development activities undertaken on the subject land Kearney J. proceeds to consider the meaning of the statutorily defined term "rural industry" in the following passages at p.4 of his judgment:-

"Turning now to the terms of the Ordinance, "Rural industry" is defined as "Rural industry means handling, treatment, processing or packing primary products and includes servicing in a workshop plant or equipment used for rural purposes in the locality". It is apparent that the second limb of this definition is not applicable. It is submitted on behalf of the defendant that activities in relation to the products sold from the subject land fall within the terms of "handling, treating, processing, or packing primary products". There is no definition of "primary products" in the Ordinance, and there does not appear to be any relevant authority dealing with this expression in a manner which would be of assistance in the context of the present case. I have been referred to dictionary meanings of the word "primary" and the word "products", but I think that ultimately its meaning and connotation must be discovered from reading the words used in their grammatical and ordinary sense, paying regard to the context in wh

ich they appear in the Ordinance. It has been helpfully suggested by Mr. McClellan of counsel for the defendant that a useful definition would be in the following terms:-

"Products composed of natural matter or matter developed by natural means."

I accept this suggested meaning of the expression as providing an apt and useful guide to the determination of these proceedings."

Having so interpreted the statutory term Kearney J. next proceeds to apply his interpretation to each of the development activities carried out on the subject land as described by His Honour and calls for short minutes to give effect to his conclusions.

On 6th March, 1979 Kearney J. made the declarations and orders as set forth in the Appendix hereto.

The development application made by Mr. Soars as 'Proprietor of Australian Native Landscapes' which led to the grant by the Respondent of the aforesaid development consent was not introduced into evidence. However there was in evidence Mr. Soar's letter dated 12th July, 1979 responding to the Respondent's request for further information in respect of the development application that had been lodged with it. The letter includes the following statements:-

"............ I only intend to use the land in accordance with the declarations of the Supreme Court. My Solicitor attached a list of proposed uses for the premises when he lodged the Development Application on 27th February, 1979. I now enclose an amended list and should be pleased if that could be substituted for the list attached to the original application."

The amended list stated the following "Proposed Uses":-

"1. To use the land for the purpose of the storage, processing, packing and distribution of bark.

2. To use the land for the storage and distribution of timber logs.

3. To use the land for the storage and distribution of chicken manure.

4. To use the land for the storage of sand, soil, sawdust and bark fines and the mixing and consequent distribution of those mixtures.

5. To use the land for the storage and distribution of mushroom compost.

6. To use the land for the mixing of sand, soil and mushroom compost and the distribution of such mixtures.

7. To erect machinery and buildings on the land to be used in conjunction with those uses."

......................................................

I note that you have asked me to provide you with a review of environmental factors as to this development. I have been carrying out my business on this land in the same manner as is presently being used for the past six years. The proposed use of the premises will not be any different. The Council is well aware of the way in which the land has been used. No purpose therefore, will be served by me having to expend additional moneys on the preparation of such a statement when the development is already known to the Council. There could be some reason for you asking for such a statement if I was starting up a new operation but this is not the position."

The Respondent notified the proposed development to 13 adjoining landowners and received 5 responses involving 4 objections which directed attention to anticipated problems of noise nuisance and traffic congestion. (One of the objectors, Mr. Lidgard gave evidence in the proceedings opposing the modification to extend the hours of operation. The successor in title to another objector also gave evidence opposing the same modification).

On 18th December, 1979 the Respondent granted development consent to the subject land being developed by "use of land for the purposes of rural industry subject to the following conditions". The written instrument of consent then sets forth 28 conditions including the following (being the 2 conditions relevant to the two s.102(5) appeals):-

"8. Trading and/or working hours being confined to Monday to Friday 7am to 5pm, - Saturday 7am to 1pm, - no work on Sunday. This to apply to any work creating noise or other inconvenience.

25. Uses on-site to be restricted to those contained within clause 9 of the Supreme Court Order dated 6.3.1979."

Paragraph 9 of the Court's Order stipulates the following purposes:-

"(a) The storage, processing, packing and distribution of bark;

(b) The storage and distribution of timber logs;

(c) The storage and distribution of chicken manure;

(d) The storage of sawdust and bark fines and the mixing and distribution thereof;

(e) The storage of sand, soil, sawdust and bark fines and the mixing and distribution thereof;

(f) The storage and distribution of mushroom compost;

(g) The storage of sand, soil and mushroom compost and the mixing and distribution thereof until a consent for the use of the said land or any part thereof for such purpose has been granted."

C. THE S.102 MODIFICATION APPLICATIONS

(i) Modification of Condition 25

By letter dated 17th June, 1987 the Solicitors for the Applicant sought modification under s.102 of the Act of the development consent to vary condition 25 thereof so that it now read:- "Uses on site to be restricted to the handling, treating, processing or packing of primary products in the nature of landscaping supplies and the storage and distribution of those products".

The letter stated the following grounds in support of the modification applied for:-

"(a) As with all industries, that of a rural industry providing landscaping supplies must maintain its viability by adding to or deleting from its product range as materials become unavailable or unpopular in the market place and as new materials are developed to replace them.

(b) The limitation of the use to the handling and sale of materials listed in paragraph 9 of the Supreme Court Order made on 6 March 1979, more than eight years ago, is unduly restrictive and denies any opportunity for flexibility in the operation and management of the rural industry.

(c) The suggested alteration provides Council with sufficient control over the rural industry to ensure that the products which may be handled and sold are those which are primary products within the definition accepted by Mr. Justice Kearney in the Supreme Court proceedings.

(d) There will be no change in the nature of the operation of the rural industry and thus no adverse environmental impact will result from approval of the application to modify the development consent."

On 8th October, 1987 the Respondent requested the Applicant's Solicitors to itemise "the proposed scope, type and variety of present and proposed uses on site ..........." to allow Council to consider such items in the context of a 'rural industry'.

The Respondent's letter proceeds:-

"Following the submission of an itemised list of goods to be treated, handled, packed or processed on site, Council would require confirmation as to how the operator would maintain the requirement that all such items would be primary products."

In response to the Respondent's letter a discussion took place between Council servants and the Applicant's Solicitors and the latter thereafter wrote to the Respondent on 8th December, 1987 amplifying the reasons or grounds in support of the modification application stating, inter alia, what products currently handled on the subject land, in the opinion of the writer, were primary products and what additional products were in the opinion of the writer ancillary to the sale of the stated primary products.

The letter enclosed a copy of the Applicant's 'product list' issued on 1st September, 1987 stating the products 'currently handled on the site' and went on to suggest the following additional content to the proposed condition 25:-

"In order that Council may be kept informed of the products which are to be handled, treated, processed or packed, the applicant shall forward to Council its product list each time it is updated or re-issued, it being noted that as at the date of determination of the application under s.102 of the Environmental Planning and Assessment Act the applicant had delivered to Council a copy of its product list effective 1st September, 1987."

The modification application was reported to the Respondent's Development Unit on 25th January, 1988 when it was recommended that the application be refused for the following reasons:-

"1. The products proposed to be distributed from the subject site, as itemised on the list submitted on 8.12.1987 are not all the result of handling, treating, processing or packing of primary products and therefore, pursuant to Section 90(1)(a)(i) the distribution of products listed would lead to contravention of the Warringah Local Environmental Plan 1985 in relation to the definition of a Rural Industry.

2. It has not been confirmed by any submission that the proposed modification will not cause adverse environmental impact to the area or that there will be no prejudice to people who had previously objected to the development application."

This recommendation was adopted by the Respondent at its meeting held on 2nd February, 1988 and the Applicant was thereafter notified in writing of the Respondent's determination.

In the course of the hearing of the appeal the Applicant without objection from the Respondent, was given leave to further amend its application by substituting the following Condition 25:-

"25. Uses on site to be restricted to the handling, treating, processing or packing of primary products in the nature of landscape supplies of the classes nominated in the Applicant's Wholesale Price List as from 1 May, 1988 (Exhibit 4) and bush stone and the storage and distribution of such products."

(ii) Condition 8

By letter dated 11th December, 1987 Town Planning Consultants on behalf of the Applicant sought to modify Condition 8 by extending trading hours Monday to Friday from 5pm to 6pm and Saturday from 1pm to 4pm.

The Respondent having requested that the modification sought be the subject of a duly completed application form, the Applicant made application to modify Condition 8 by extending the trading hours. The application incorrectly stated the extended weekday trading hour of 5pm when 6pm was intended and leave was given to the Applicant in the course of the proceedings to amend the application.

This application was determined by the Respondent's Development Unit exercising delegated authority by refusing the application on the following grounds:-

"1. The application for modification will be prejudicial to people who had previously objected to the development application and does therefore not constitute a valid Section 102 application for modification of development consent.

2. It has not been confirmed by any submission provided by the applicant that the proposed modification will not cause adverse environmental impacts (noise) to the neighbourhood.

3. On the basis of the current objections to the existing operation the proposed hours of operation are inimical to the amenity of the neighbourhood."

D. THE APPLICANT'S CASE

Evidence was given on behalf of the Applicant by Mr. Patrick Soars the Managing Director of the Applicant.

It appears from his evidence, which I accept, that he has been using the subject land continuously since 1972 for the purposes of his landscape supply business (originally styled Australian Native Landscapes and subsequently incorporated as the Respondent).

Mr. Soars' business has expanded and in addition to the Terrey Hills site the Respondent now operates plants at Badgery's Creek and Baulkham Hills. The Respondent operates the largest landscape supplies business in metropolitan Sydney.

Over the past 20 years the landscape industry has rapidly developed. However the core range of landscape supplies has remained much the same, involving soil, soil conditioners, mulches, timber products etc.

When asked what landscape supply products were currently obtainable from the subject land which were not available in 1979 (at the time of the Supreme Court hearing) Mr. Soars replied:-

"If I could generalise on that, the majority of the gravels would be one, some of the sands and some of the mulches.........."

When asked why the Respondent would not be content to have the development consent modified so as to include all the landscape supply products currently obtainable from the subject land Mr. Soars indicated that he feared that to be so specific might preclude future diversification in landscape supply products.

I accept Mr. Soars' testimony that over the years he has reasonably sought to overcome neighbour complaints about his development activities carried out on the appeal site eg. in the past year he has acquired 3 new volvo prime movers which operate far more quietly than the previous prime movers employed on site. Further by boundary planting and mounding he has attempted to minimise sound escape to neighbouring properties. Most significantly some years ago he transferred from the subject land to the Badgery Creek premises the bark processing machine (which appears to have been the chief source of noise and neighbour complaint).

Mr. Soars has sought to ameliorate dust problems by installing a water spray system and he has sought to ameliorate odour problems by eliminating chicken manure from the range of products available from the subject land.

I also accept that Mr. Soars believes that his operations have been excessively scrutinised by the Respondent to monitor compliance with the terms of conditions of development consent.

The history over a number of years of complaints from neighbours and trade competitors and the consequent investigations thereof by the Respondent and the unusually narrow terms of the 1979 development consent appear to explain why the Applicant seeks to modify the relevant development consent so as to provide what it considers to be the necessary degree of flexibility and adaptability in the range of landscape supplies available from its Terrey Hills premises. On 2nd April, 1987 the Respondent notified the Applicant of its opinion that certain products sold were beyond the scope of the 1979 development consent.

Mr. Soars' reasons for seeking extended trading hours are based upon business (economic) considerations and convenience to long distance hauliers making deliveries and to the Applicant's customers.

It was submitted on behalf of the Applicant that the Court was empowered by s.102(1) of the Environmental Planning and Assessment Act 1979 to grant the modifications sought, and that in its discretion, it would exercise the power in the manner sought by the Applicant.

The Respondent disputes that the relevant power is available in the present case, but even if it were it, submits that the Court on discretionary grounds would refuse both applications.

E. THE RESPONDENT'S CASE

Evidence was given on behalf of the Respondent by Mr. Gatenby, a Town Planner employed by the Respondent and by Mr. Lidgard and Mr. Jones residents in Myoora Road opposite and in the vicinity of the appeal site.

Mr. Gatenby's evidence was somewhat inconclusive, and really did little more than repeat the opinions contained in the town planning reports (which he had prepared) which the Respondent had considered in making its determinations refusing both modification applications.

It is clear that Mr. Gatenby's evidence is substantially controlled by his opinion that many of the products available at the Applicant's Terrey Hills premises are not 'primary products' as that term is employed in the statutory definition of "rural industry" with the consequence that the proposed modification to Condition 25 is legally impermissible. Despite his evidence to the contrary I find that neither he nor anyone else on behalf of the Respondent has undertaken an appraisal of the proposed modification on its planning merits. This finding does not operate as a criticism of the Respondent because it must be accepted that the Applicant carries the onus for the favourable exercise of the power conferred by s.102 (at least so far as concerns the preconditions of that power). In this case the Respondent having concluded that the proposed modification was legally impermissable has not proceeded to consider the town planning merits of the proposal or its environmental impact save to conclude that the Applican

t has not discharged the onus imposed by s.102(1).

In the result on the question whether the proposed modification to Condition 25 satisfies the preconditions laid down in s.102(1) the Court has very little evidence. The Applicant's evidence is confined to that given by Mr. Soars and really amounts to a reliance on the fact that the Applicant's use of the premises over a long period of time is not materially different from the use that the proposed modification to Condition 25 contemplates whereas the Respondent's evidence is confined to Mr. Gatenby's opinion that it is not possible to make an appraisal because of the uncertainty inherent in the broadening of the range of permissible activity proposed for the appeal site. Neither objector who gave evidence addressed the question of the proposed modification to Condition 25, their testimony being directed to the question raised by the proposed modification to Condition 8 (trading hours).

It was in the light of this very sketchy evidence that the Respondent submitted that the Court would find that the Applicant had not discharged the onus of proof raised by s.102(1). This submission was supplemented by a related submission that on discretionary grounds the Court would not modify Condition 25 in the manner sought because to do so would involve avoiding the consequences of a proper determination pursuant to s.90 of the Act of a development proposal which in terms of planning principle should be subjected to the regime of development application and the determination thereof.

The Respondent's case opposing the proposed modification to Condition 8 (trading hours) was based principally upon the evidence of the neighbouring residents Mr. Lidgard and Mr. Jones. The former had raised objection to the Applicant's development application which was the subject of the grant of development consent by the Respondent in December 1979, the latter purchased a residential property in December 1987 from the person who also had raised objection to the original development application in 1979.

Additionally, as I have earlier mentioned, there were two other neighbouring residents who had objected to the original development application who did not give evidence in the present proceedings.

I accept Mr. Lidgard's evidence and Mr. Jones' evidence and find that they are likely to suffer prejudice (especially in the form of noise nuisance) if the trading hours are extended as proposed by the modification to Condition 8. In so concluding I have taken into consideration in favour of the Applicant the effects of urbanisation in this section of Myoora Road which have occurred in the past decade involving additional traffic traversing that road.

It is true that the land in this Section of Myoora Road is no longer generally developed for rural/residential purposes as it once was. However it is also clear, and I so find, that despite its long standing presence, the Applicant's development has, and does cause nuisance, especially by noise emission, to neighbouring properties. Although the proposed extended Saturday trading hours would be likely to have a far more pronounced adverse effect on the neighbourhood than the more modest weekday extensions to existing trading hours the Applicant has also failed to satisfy me that no prejudice would result if weekday trading hours were extended from 5pm to 6pm.

In so concluding I do not overlook the genuine efforts of Mr. Soars on behalf of the Respondent to live peaceably with his neighbours and the actions he has taken to ameliorate nuisances.

Clearly the new volvo prime movers have substantially reduced the noises emitted from the previous prime movers utilised on the appeal site. However this has not resulted in the elimination of noise nuisance and it is obvious and inevitable that any extension of existing trading hours would likewise extend that noise nuisance.

I have taken Mr. Jones' testimony into account in reaching the conclusion that the proposed modification to Condition 8 must be refused even though not he, but his predecessor in title, was the relevant objector. If it were necessary so to hold, I would be prepared to hold that Mr. Jones is, by virtue of being a successor in title (by purchase), a "person who objected to the development application" within the meaning of s.102(1)(b). However there is no doubt that Mr. Lidgard is such a person and my acceptance of his testimony alone is sufficient to sustain my conclusion. Even if Mr. Jones is not so qualified, his testimony, which I accept, is nonetheless relevant to the question of discretion raised by s.102(1) and taken with the weight of Mr. Lidgard's evidence, would in my opinion be a sufficient reason to decline, on discretionary grounds, to exercise the statutory power in favour of the Applicant.

Accordingly I would dismiss the appeal in proceedings No. 10195 of 1988.

As I have earlier mentioned the Respondent submitted that the power conferred by s.102 was not available in the present case and that even if it were the Court would, on discretionary grounds, refuse to modify Condition 25. It is to these matters that I now turn.

F. THE ISSUES IN DISPUTE ON THE PROPOSED MODIFICATION TO

CONDITION 25

The Respondent's submissions may be summarised in the following propositions -

(i)The Applicant had not discharged the onus of satisfying the Court of the matters required by s.102(1)(a) and (b);

(ii) The Court could not, for the purposes of s.102(1)(a), be satisfied that "the development to which the consent as modified relates is substantially the same development" to which the relevant 1979 development consent related because the modification proposed at least 6 new product lines not covered by the 1979 development consent namely:-

(a) sand and soil for separate distribution (rather than in mixtures);

(b) blue metal and road base; (c) decorative gravels;

(d) mulches and ground covers other than pine bark products;

(e) bush rocks;

(f) miscellaneous products;

where each of the products (a) to (d) inclusive is conceded by the Applicant to be an important sale item in its business.

(iii) Many of the so-called quarry products (sand, soil, blue metal, decorative gravels, rock, cement) are not primary products and hence can not be sanctioned as a "rural industry" within the meaning of the relevant environmental planning instrument;

(iv) As a matter of statutory discretion the Court would refuse to modify Condition 25 in the manner sought because the modification was of such a nature (uncertainty or open-endedness as to scope and content of the permitted development) that in principle, it should be subjected to the investigative and determinative regime of a development application considered and determined in accordance with ss. 90 and 91 of the Environmental Planning and Assessment Act.

Notwithstanding the considerable force of the Respondent's submissions I have come to the conclusion that both as a matter of statutory power and statutory discretion I should uphold the appeal subject to an amendment to the proposed new Condition 25 designed to inject necessary certainty as to the scope and content of the permitted development. The amendment will limit the classes or types of primary product to those described in the Applicant's Wholesale Price List (Exhibit 4) and will exclude new types or forms of treatment and processing.

These limitations are consistent with Mr. Soars' evidence even though new products or processes, even if closely related to existing products and processes, will require additional approval (ie further development consent or further modification of the existing development consent) if they are to be introduced to the Applicant's Terrey Hills premises.

Although the question was not addressed in argument, I do not doubt that the power to modify conferred by s.102(1) is not limited to modify precisely in the form applied for. In the present case the limitations I propose are in the nature of essential qualifications to the proposed grant, and as I have noted, do not essentially travel beyond the scope of the application, but introduce the necessary element of certainty and containment.

My reasons for so concluding can be briefly stated, perhaps most conveniently by considering seriatim the 4 above-mentioned propositions advanced by the Respondent.

Re: (i)

Though the evidence is sketchy (as I have mentioned) I am satisfied on the evidence that the consent, modified as aforesaid, relates to substantially the same development to which the 1979 development consent relates and that no prejudice will be caused to any person who objected to the original development application.

Re: (ii)

I am satisfied that the development to which the modified consent relates is substantially the same development as that to which the 1979 development consent relates.

It may be accepted that the 1979 development consent poses some difficulty for the precise ascertainment of the development thereby sanctioned. In form and by its express terms the grant of consent is general in character "use of land for the purposes of rural industry". However those general words of grant are limited by Condition 25 "uses on-site to be restricted to those contained in clause 9 of the Supreme Court Order dated 6.3.1979".

Read as a whole the effect of the grant is that the subject land may be developed for the purposes of a rural industry by the particular uses specified in the Supreme Court Order.

However the issue raised by the present proceedings goes beyond the mere construction of the 1979 development consent and in particular it is permissible to look beyond the actual terms of development consent to ascertain the purpose of Condition 25 cf. Double Bay Marina Pty. Ltd. v. Woollahra Municipal Council (1985) 54 LGRA 313 and Jandra Blue Metal Quarries Pty. Ltd. v. Rainbow Flat Quarry Environment Committee (unreported 18th November, 1988).

When reference is had to the terms of the judgment of Kearney J. and the relevant correspondence passing between the parties (which I have earlier recited) it is tolerably clear that "the development" to which the 1979 development consent related was that of the handling treating and processing of a range of primary products for distribution to, and use in, the landscape industry. So considered (and in my opinion, for present purposes, that description of the permitted development is appropriate) the fact that the present proposal involves additional products in the range of products so distributed and used does not change the essential character of the development. Accordingly though involving a wider range of specific products the proposed modified development consent relates to substantially the same development as did the original development consent.

Re: (iii)

The principal area of dispute between the parties on this issue concerns the question whether the various decorative gravels and quarry products specified in Exhibit 4 are themselves primary products and the related question whether, if they are primary products, they are "handled, treated, processed or packed" so as to fall within the definition of "rural industry".

In the proceedings between Kearney J. there was a determination as to what was to be regarded as a 'primary product' within the definition of "rural industry". (The same definition applies in the present proceedings though the planning instrument has changed from that in force in 1979). His Honour adopted a suggested definition that I have earlier recited "as providing an apt and useful guide to the determination of this proceedings" p.4. In the present proceedings I do not understand the parties to desire to canvass that ruling.

The Respondent submits that the various gravels and quarry products handled at the Applicant's premises are more aptly described as 'extractive materials' rather than as 'primary products', or alternatively are the result of 'primary industry' rather than of "primary production". I do not think this too fine distinction is called for in the present case. In any event the Macquarie Dictionary definition of 'primary industry' does not distinguish between dairy farming, forestry or mining.

Thus in the present context I hold that the relevant gravel and quarry products handled at the Applicant's premises are 'primary products' within the meaning of that term in the relevant definition of 'rural industry'.

I also find that those primary products are "handled or processed" in the relevant sense whether, as in the case of the gravels and some quantities of sands, they are sold and distributed without further processing at the Applicant's premises (in which case they are nonetheless "handled" within the definition) or whether as in other cases, the various types of sands are mixed (in which case they are 'processed' within the definition).

Similarly I hold that the 'Koppers' timber treated logs are relevantly 'primary products' and I find that they are relevantly "handled" at the Applicant's premises, though they are sold and distributed without further treating or processing by the Applicant.

Finally in relation to a number of miscellaneous items which clearly are not primary products eg agricultural pipe, weed control mats, dog nails, dog spikes, hessian ties etc I find on the evidence of Mr. Soars (which was not challenged) that they constitute an extremely minor and insignificant element of the overall business activity and that they may properly be regarded as ancillary (in the sense of being incidental) to the landscape supplies business undertaken by the Applicant cf. Foodbarn Pty. Ltd. v. Solicitor General (1975) 32 LGRA 157 at p.161.

Re: (iv)

The Respondent's submission based on discretionary grounds and taken to its ultimate limits comes very close to the untenable proposition that would deny s.102 any effective operation save for cases involving minor in inconsequential modifications. This is not to deny the existence of the real discretion inherent in the conferral and exercise of the power. Recent examples of the Court exercising its discretion to refuse modification applications are to be found in Progress and Securities Pty. Ltd. v. North Sydney Municipal Council (unreported 19th August, 1988) and Jandra Blue Metal Quarries Pty. Ltd. v. Rainbow Flat Quarry Environment Committee (unreported 8th November, 1988).

In the latter case, involving designated development, the Chief Judge at pp.13/14 stated:-

"But even if it be assumed that the proposed development is substantially the same and that, in fact, Mrs. Moore's house has been and will continue to be unaffected by the quarrying activity, I do not think that, in the exercise of my discretion, I ought permit the modification. The new proposal has not been the subject of an environmental impact statement and has not been publicised in the manner ordinarily required of designated development. It is true that s.102(1)(b) operates to protect people who had previously objected and to ensure that their voices will be heard in the decision making process. However, no provision is made in s.102 for people who previously did not object. Furthermore, I cannot overlook the circumstance that confidence in the planning system would be seriously eroded if people believe that the provisions relating to designated development can be bypassed by the expedient of making successive applications to modify a previously assessed low intensity development. The reason why certain

development is characterised as "designated development" with the concomitant requirement that a formal environmental assessment be undertaken is because it is recognised that such development will, more probably than not, have serious environmental impacts and consequences. The environmental impact of quarrying is directly related to the intensity of the operation. What is proposed is the trebling of the quarrying operation. I do not think it is appropriate, in the circumstances of this case, to approve the application."

Although the Respondent's submission in the present case approaches the reasoning in the cited passage, it must be appreciated that the Chief Judge was dealing with the special case of 'designated development'. The present case does not involve 'designated development'. It involves, as I have found, an extension of products range, in the business of landscape supplies, which has operated on the appeal site for nearly 20 years, without altering the essential character of the existing development.

Moreover the Respondent has not in the proceedings adduced any evidence to suggest that there are any adverse environmental consequences in the broadening of the product range. True it has adopted the approach of "we cannot say because we do not or can not know". However there is no evidence to support the conclusion that on planning merit grounds the modification should be refused and on the evidence I am satisfied that the modification can reasonably be granted subject to the limitation I have mentioned.

The effect of the Respondent's submission perhaps comes into clearer focus if it is asked what discernible difference from what had happened in the course of the present application (so far as concerns the actions of the parties) could be reasonably expected if a development application were called for, instead of a modification application. It would seem to me that the answer judged realistically would have to be 'very little', having regard to the detailed correspondence and discussions that passed between the parties prior to and after the modification application was lodged with the Respondent.

A careful consideration of those matters leaves me in little doubt that the essential dispute between the parties concerned the legal effect in the present case of the definition of "rural industry" and that essential dispute would have manifested itself and impressed itself on the development application process had the present application so proceeded.

Moreover it was not suggested how the Applicant's proposal would be any more effectively elucidated, scrutinised and determined by the regime of development application than it has been by the Court's determination of the appeal within the framework of s.102.

In the present case particularly in the light of the limitation I propose on the modification, I am satisfied that the planning and environmental impact of the development to which the modified consent will relate is not so uncertain and imponderable as to require the more cautious approach of insisting upon the Applicant making a development application instead of its modification application. I do not shut out the possibility of such a result in other cases. In the present case I do not find such an approach to be either necessary or appropriate.

For the foregoing reasons the appeal should be upheld.

Accordingly I make the following orders -

1. Appeal No. 10195 of 1988 dismissed.

2. Appeal No. 10256 of 1988 allowed.

3. Development consent No. 79/337 granted on 18th December, 1979 to the development of Portion 77 and Part Portion 105, Myoora Road, Terrey Hills for the purposes of rural industry be modified by omitting Condition 25 and substituting the following Condition 25.

"Uses on site to be restricted to the handling, treating, processing or packing of primary products in the nature of landscape supplies as specified in the Applicant's Wholesale Price List (Exhibit 4) and bush stone and the storage and distribution of the said products PROVIDED THAT no new treatment or processing shall be undertaken additional to any treatment and processing being undertaken on the subject land as at 1st September, 1988."

4. No order as to costs.

5. Exhibits (other than Exhibit 4) to be returned.