Byron Shire Council v Archibald
[2001] NSWLEC 262
•12/13/2001
Reported Decision: (2001) 119 LGERA 23
Land and Environment Court
of New South Wales
CITATION: Byron Shire Council v Archibald [2001] NSWLEC 262 PARTIES: APPLICANT
RESPONDENT
Byron Shire Council
ArchibaldFILE NUMBER(S): 40109 of 1999 CORAM: Cowdroy J KEY ISSUES: Injunctions and Declarations :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 109 CASES CITED: King v Lewis (1991) 74 LGRA 362;
King v Lewis (1995) 88 LGRA 183;
Norman v Gosford Shire Council (1975) 132 CLR 83;
South Sydney City Council v Houlakis and Teakdale Pty Limited (1996) 92 LGERA 401;
Vaughan-Taylor v David Mitchell-Melcann Pty Limited (1991) 25 NSWLR 580DATES OF HEARING: 20/08/01, 21/08/01, 9/11/01 DATE OF JUDGMENT:
12/13/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr A Hudson (Solicitor)SOLICITOR
Wilshire Webb SolicitorsRESPONDENT
SOLICITOR
Mr J Atkin (Barrister)
Walters Solicitors
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40109/99
CORAM: Cowdroy J
DECISION DATE: 13/12/01
Introduction
1. By a second amended application class four filed on 16 August 2001 Byron Shire Council (“the council”) seeks a declaration that a quarry constructed on Lot 15 DP 844364 (“the site”) known as the Palmwoods Quarry (“the quarry”) has increased from the area actually physically used immediately before 3 February 1986 without the consent of the council.
2. The council also seek a declaration that the use of the quarry has intensified from a single purpose use of winning extractive material with ancillary crushing (“the use”) to two separate uses. The alleged intensification of the use consists of crushing, screening and processing the extracted material.
3. Further, the council seek an order restraining the respondent, his servants, agents and contractors 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 the consent of the council has been obtained pursuant to the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).
4. The site is subject to the Byron Local Environmental Plan 1988 (“the LEP”). Pursuant to the LEP the area occupied by the quarry is zoned both 1(AH) –General Rural- and 1(B2) –Agricultural Protection. Pursuant to such zoning extractive industries are permissible with the consent of council.
5. The quarry has operated continuously since approximately 1955 and became amenable to planning controls in 1968 when IDO No. 1 Shire of Byron came into force.
Lawful use
6. The parties agree that the quarry enjoys the benefit of a lawful use pursuant to s 109 of the EP&A Act.
7. Section 109 of the EP&A Act relevantly provides as follows:-
109 Continuance of and limitations on other lawful uses
(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this 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 this Act being obtained.
(2) 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 (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or
…
8. The council submits that there has been an enlargement in the area of use or an intensification of the use of the quarry since 3 February 1986 so that the benefit of the lawful use protected by s 109 of the EP&A Act is not supported by ss 109 (2)(b) and 109 (2)(c) of the EP&A Act respectively.
Enlargement of area of use
9. The date of 3 February 1986 is critical because, as noted by Priestley JA in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 at 587:-
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 subs (2). That subsection requires that the “use” be understood in a much narrower sense than before; its effect was, in my opinion, to limit the continued use previously permitted by s 309 and s 109 without consent, to the actual use of the land on the day when the planning laws otherwise would have affected it, that the 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.
10. In Vaughan-Taylor the New South Wales Court of Appeal unanimously decided that s 109(2) of the EP&A Act prevented a mining company from expanding the area of its quarry operations. Mahoney JA upheld such interpretation of s 109 of the EP&A Act despite that having made the following observation at 583:-
The ordinary operation of the quarry or mine will involve not merely digging down into the earth but also expanding laterally the quarry or mine.
11. To establish that the area of the quarry has ‘substantially increased’ since 11 September 1987 the council relies upon the evidence of Dr Brian J Button, Managing Director of Agricultural Reconnaissance Technologies Pty Ltd and Associate Professor in Earth Observation Systems at the University of Canberra.
12. 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.
13. Dr Button interpreted the results of satellite imagery of the site, 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 shaped trapezoid (a quadrilateral plane figure of which two sides are parallel)’. Dr Button said that the area of the quarry increased mainly towards the south-east.
14. Dr Button considered that a the second period of expansion 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’. Dr Button said that this area of expansion was also in a south-south-easterly direction. 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 date derived from satellite observation.
15. In addition, Mr Scott Thompson, a surveyor, was called by the council. Mr Thompson plotted the distance between two fixed points, namely road bridges, which were visible on a 1990 aerial photograph of the site, to produce a scale. The survey data from the quarry was then scaled to the 1990 photograph with the use of computer surveying software known as Geocomp. By such process the cleared quarry area shown on the 1990 photograph could be related to the scale and utilising that data a line delineating the cleared area of the quarry could be produced by computer analysis of the date.
16. Mr Thompson concluded that the cleared area was extended by approximately 6,500 m2 between the clearing shown in the aerial photograph taken on 19 January 1990 compared to that taken on 15 August 1997. Mr Thompson acknowledged that a margin of error of about 5 m in radius around each of his selected survey points could exist, resulting in a 15% margin of error in his conclusion.
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.
18. The expansion assessed by both Dr Button and Mr Thompson may not have occupied the entire area of 6,500 m2, 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 s 109 of the EP&A Act.
Intensification of use
Evidence of the council
20. The council also submits that the respondent has intensified the use made of the quarry. The council relies upon a change in the machinery and equipment used at the quarry since 1986 to support its allegations. Such change has enabled the quarry to produce road base material which could not have been produced using conventional equipment involved with extraction activities.
21. The council also relies on the observations of Mr Anton Vanderbyl, a neighbour of the quarry. Mr Vanderbyl testified that he has lived adjacent to the quarry since 1977. Mr Vanderbyl testified that before 1990 only a bulldozer, a front-end loader and one or two trucks operated at the quarry and that the quarry did not affect the amenity of his residence. After 1990 four machines were added to these operations. One machine was used to extract material; another machine was used to load a crushing machine; a machine was used for screening; and another machine was used to remove and stockpile refined material. Mr Vanderbyl testified that the noise created by the crushing and screening operators were ‘very intrusive and disturbing’.
22. Mr Vanderbyl said that crushing was periodical but frequent. The first period occurred in 1990. The second period was in April 1995 and lasted for approximately two weeks. The third period was in February 1996. He said that during this period there was also blasting and drilling at the quarry. The fourth period occurred between 19 and 29 August 1997 and Mr Vanderbyl said that a larger crusher and a screener were used from late October to early November 1997. One further period of screening occurred during May 1999.
23. The council also relies on the evidence of Ms Janelle Bancroft, a Senior Environmental Health Officer of the council. Ms Bancroft referred to the Environment Protection Authority Noise Control Manual to which recommended a maximum daytime noise level. Ms Bancroft conducted a series of tests at the residence of Mr Vanderbyl and determined that the noise emanating from the crushing operations was excessive and the impact on his amenity substantial. She said:-
Although the quarry does not have a large extraction rate, the impact of the quarrying activities at the complainant’s residence are substantial. Not only is the character of the noise vastly different to that experienced without quarrying activities but the level exceeds that recommended.
24. The council also relied on the evidence of Mr McElroy, a consultant engineer. Mr McElroy testified that it was necessary for the respondent to intensify its operations in order to make use of the remaining material in the quarry. He said that the original material won from the quarry would have been ‘the highly weathered surface material of the quarry’. Mr McElroy stated:-
The extraction has now reached a level where material that is harder and more dense and shows limited fracture in its structure which means that when it is blasted it comes out in larger blocks and has to be mechanically processed to grade it to meet the requirements of the consumers of road base such as the RTA, Councils and private road contractors.
25. Mr McElroy also testified that the ‘economics of quarrying dictate that the periods of crushing would be more intense when crushing/screening machinery is used’ because the respondent ‘would seek to minimise the number of times the crusher is moved to and from the site’.
Respondent’s evidence
26. The respondent asserts that the activities of crushing and screening have always been carried out at the quarry and that such processing activity is not separate to any other activity.
27. The respondent relies on the evidence of Mr Gregory Alderson, a consultant civil, structural and environmental engineer. Mr Alderson testified that ‘the raw quarry product does not require crushing’ and disagreed with Mr McElroy that only weathered basalt was won from the quarry prior to 1990. He said that it was ‘not normal practice to blast the softer weathered basalt as the stone breaks down and shatters’.
28. The respondent deposed that from 1979 it was intended to ‘utilise material from the narrow ridge extending to the southern rear boundary of the quarry with the intention of continuing the same gradient as the land to the south-east’. He also said that crushing has always occurred on the quarry, beginning with ‘picks, shovels and sledge hammers’ and ‘larger D6 bulldozers’. Techniques continually improved, and he said a crushing and screening machine was first used for the purpose of crushing in approximately 1990.
29. The respondent also relied on reports made by Mr Ross Palmer, Principal of Palmer Acoustics (Australia) Pty Ltd, a firm of consultant acoustic engineers (“the Palmer reports”). The Palmer reports establish that a noise management plan has been adopted by the respondent.
Findings on intensification of use
30. Ordinarily, the upgrading of machinery to more effectively implement business processes would not constitute an intensification of a use of land. In Norman v Gosford Shire Council (1975) 132 CLR 83 Mason J, in a joint judgment of the High Court of Australia, stated at 86:-
To my mind the crux of this matter is that at all times after 1st January 1971, as before, the use to which the land was put was the removal of topsoil and filling for the purpose of sale. The nature of this use was not altered because there was an expansion in production by reason of increased demand or because efficient machines were employed in production in place of manual labour or because excavations made in the course of removal assumed the appearance of “quarry faces” whereas before they wore a different aspect.
However, such decision is no longer relevant to the specific provisions of the EP&A Act. In South Sydney City Council v Houlakis and Teakdale Pty Ltd (1996) 92 LGERA 401 Beazley JA said at 406 that as a result of the enactment of s 109(2) Norman was ‘of limited, if any, assistance’ in the interpretation of s 109 of the EP&A Act (see also Ku-ring-gai Municipal Council v Mobil Oil Australia Pty Ltd (NSWCA, 3 June 1992, unreported)).
31. Authorities demonstrate a disparity of judicial interpretation of s 109 of the EP&A Act. In Houlakis and Teakdale both Beazley JA and Santow AJA held that an extension of trading hours of a hotel was an ‘enlargement’ of a use rather than an ‘intensification’. By comparison, in Houlakis and Teakdale Clarke JA said at 404:-
Nothing is to be gained, in my opinion, by inquiring into whether the increase in trading hours effected an enlargement (which seems appropriate to areas of use), expansion (which must involve more than an enlargement) or intensification. If I was forced to decide between the three words I tend to favour “intensification” (see by way of example, Rockdale Municipal Council v Clark (1982) 47 LGRA 159 per Hurley JA at 160).
In Rockdale MC v Clark the New South Wales Court of Appeal held that the extension of an existing use of a tennis court for night tennis amounted to an ‘ intensification ’ of the use.
32. In King v Lewis and Anor (1991) 74 LGRA 362 at 370 Cripps J observed that:-
the only sensible way to measure ‘intensification’ with respect to a quarry is to measure output .
On appeal, the decision was reversed. In King v Lewis (1995) 88 LGERA 183, Kirby ACJ (as His Honour then was) confirmed the decision of Cripps J at first instance that an increased use of a quarry, evidenced by an increased output of won material, could be characterised as an ‘ intensification ’. However, as observed by His Honour at 198, Cripps J did not deal with the issue of the physical expansion of the area of the use.
33. In King v Lewis the remaining members of the Court of Appeal, Priestley and Handley JJA, separately agreed with the reasons of Kirby ACJ though not with critical conclusion of His Honour that the quarry was being used as a ‘working quarry’. The ratio of Priestley and Handley JJA was that drawing material from a stockpile of previously won material was not a use of a quarry qua a quarry. The commentary of the Court of Appeal relating to s 109 of the EP&A Act was therefore strictly obiter.
34. As a result of this conflicting series of decisions of the NSW Court of Appeal only few principles can be stated to be authoritive. The first is that the principle in Norman stated by Mason J is now of limited application in view of the enactment of s 109(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).
Finding on intensification
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 one 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 , and the production of such material represents an ‘intensification of the use’ within the meaning of s 109(2)(b) of the EP&A Act.
Conclusions
36. The council has established its claim to relief. However, the Court will refrain from making final orders until a view of the site is held and the appropriate form of final relief can be determined. Accordingly the court declares:-
1) That the area of the quarry operating on Lot 15 DP 844364 Palmwoods Road, Main Arm, known as ‘Palmwoods Quarry’ (“the land”) has increased from the area actually physically used for such purpose immediately before 3 February 1986 without the consent of the Byron Shire Council.
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 Byron Shire Council.
Further, the Court orders:-
1) That the proceedings be adjourned pending a view of the site.
2) The proceedings be placed in a call over on Tuesday 18th December 2001 for the purpose of fixing a hearing date and a date for a view.
3) Costs be reserved.
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