Colston Budd Hunt and Twiney Pty Limited v Campbelltown City Council [1998] Nswlec 180 (13 August 1998)

[1998] NSWLEC 180

Land and Environment Court

of New South Wales

CITATION:	COLSTON BUDD HUNT AND TWINEY PTY LIMITED v. CAMPBELLTOWN CITY COUNCIL [1998] NSWLEC 180 (13 August 1998) [1998] NSWLEC 53
PARTIES:	COLSTON BUDD HUNT AND TWINEY PTY LIMITED v. CAMPBELLTOWN CITY COUNCIL [1998] NSWLEC 180 (13 August 1998)
FILE NUMBER(S):	10224 of 1998
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980
CASES CITED:	see Cleary v. Maitland City Council (1983) 51LGRA 85 at 88 per Cripps J ; Big Country Developments Pty Ltd v. Penrith Council (unreported 24 April 1998); Austin Construction Co. (Aust) Pty Ltd v. North Sydney Municipal Council (1967) 14LGRA 154 at 158 and 159; Peter Rommel & Associates Pty Ltd v. North Sydney Municipal Council (1971) 23LGRA 99 at 102 and 103
DATES OF HEARING:	10 August 1998
DATE OF JUDGMENT:	08/13/1998
LEGAL REPRESENTATIVES:	Mr C. McEwen, Barrister Mr. D. Wilson, Barrister

JUDGMENT:

A. QUESTION OF LAW

A question of law has been belatedly raised by the Council in pending class one proceedings concerning the question whether it is legally possible for development consent to be granted to the Applicant’s proposed development of land situate at Ingleburn for the purpose of establishing a metal recycling facility.

The question of law has been formulated as follows:

“Whether or not the development subject of these proceedings is prohibited having regard to clause 4 of Interim Development Order No. 21 - City of Campbelltown and Campbelltown City Council Development Control Plan No 20 entitled - `Motor Vehicle Wreckers, Metal Recyclers, Waste Material Depots and Junk Yards’.”

B. THE AGREED FACTS

The parties have facilitated the determination of the question of law by tendering an agreed statement of facts (Exhibit 1).

Briefly stated, the relevant facts (as agreed) are as follows:

(i.) The development site (being lot 1314 Deposited Plan 805440) is situate at Nos. 50-52 Stennett Rd, Ingleburn (the development site);

(ii.) Interim Development Order No. 21

- City of Campbelltown (the IDO) applies to the development site and includes it within the General Industrial Zone (Zone No. 4(a));

(iii.) The Applicant has applied for development consent to develop the development site as a “metal recycling facility”. In terms of the IDO, there is no definition of a “metal recycling facility” but the proposed development is properly characterised as an “industry” for the purposes of the IDO and as such, is a form of development that is permissible with the consent of the Council. The term “industry” is defined by the set of standard or model provisions as published in Government Gazette No. 88 of 17 July 1970 (which are adopted by the IDO vide cl.2(2)) as follows:

“Industry” means -

(a) any manufacturing process within the meaning of the Factories, Shops and Industries Act, 1962;

(b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business; or

(c) the mining of extractive material.”

(iv) A full description of the activities and/or processes to be undertaken in the proposed metal recycling facility is contained in paragraphs 7, 8, 9, 10, 11 and 12 of the Statement of Agreed Facts. For present purposes the proposal may be described by reference to the briefer description of the proposed development contained in the extract (Exhibit 4) from the Executive Summary of the Environmental Impact Statement prepared for the proposed development (which constitutes “designated development” under the Environmental Planning and Assessment Act 1979 (the EP&A Act) (being relevantly “metallurgical works” within the meaning of Schedule 3 to the Regulation made under that Act). That abbreviated description is as follows:

“The receiving, inspection, sorting, processing and despatch of ferrous and non-ferrous scrap metals. The metals are processed by metal shredder, metal shear (guillotine), oxy acetylene cutting, and hydraulic bale press, depending upon their size and gauge……Processed ferrous materials are despatched to local steel manufacturers for re-melting to new ferrous product, while non-ferrous materials are on-sold to a variety of local and overseas manufacturers for re-cycling.

Present plant volumes are 185,000 to 200,000 tonnes per annum, of which 85-90 per cent is recycled for re-use by industry. All transport is by truck, ranging from 100 to 190 vehicles a day, depending on daily activity.”

(v) Clause 4 of the IDO is in the following terms:

“ 4. (1) Subject to this clause no development shall be carried out on any land otherwise than in accordance with the provisions of a development control plan relating to that land adopted by resolution of the Council.

(2) A development control plan, adopted by the Council, shall be consistent with this Order

(3) The plan marked `Development Control Plan referred to in Interim Development Order No. 21 - City of Campbelltown’ shall be deemed to have been adopted by the Council under subclause (1) on the appointed day.”

(The plan referred to in cl.4(3) has no relevance to the proposed development.)

C. FACT IN DISPUTE

It is at this point that there is a dispute on the most crucial fact, namely whether there is any relevant development control plan that applies to the proposed development. (By “relevant” is meant relevant for the purposes of cl.4 of the IDO.)

In the Statement of Agreed Facts, there had been a provisional agreement that an identified document (“Development Control Plan No. 20” (DCP)) had been adopted by the Council on 3 July 1984 and applies to the development site.

However unexceptionally the Applicant required formal proof of the adoption by the Council of the DCP. The Council has sought to prove the adoption of the DCP by tendering copies of various records, including minutes of Council resolutions (Exhibit 3). Significantly, those documents do not include any resolution which in terms, adopts the DCP. In particular, the documents clearly establish that the DCP was not adopted on 3 July 1984 (as had been provisionally agreed). Rather, the documents establish the following facts:
(i.) On 22 May 1984 the Council adopted a recommendation of its Planning and Building Committee “(T)hat Council resolve to prepare a policy in the form of a Development Control Plan under the provisions of the Environmental Planning and Assessment Act 1979 for the operation of motor vehicle wreckers, metal recyclers, waste material depots and junk yards”.
(ii.) On 3 July 1984 the Council adopted the recommendation of its Planning and Building Committee “(T)hat the attached policy for the operation of motor vehicle wreckers, metal recyclers, waste material depots and junk yards be advertised as a Development Control Plan”.

In the Report accompanying that recommendation, the following is stated:
“The attached policy in the form of a Development Control Plan has been drafted to achieve the objectives outlined in the report considered by Planning & Building Committee on 15th May, 1984.

For the policy to achieve Development Control Plan status it will be necessary to follow the procedure outlined in the Environmental Planning and Assessment Act regulations, which involves public exhibition, determination of representations, adoption and publication of a notice advising of its adoption.”

The “policy” that was attached to the Report and recommendation was in the form of the document a copy of which is annexed hereto and marked “A” (draft DCP).

(iii) The Council publicly exhibited the draft DCP from 10 until 31 July 1984 and invited interested persons to inspect and make submissions on that plan by 31 July 1984.

(iv) On 10 August 1984 , the Council notified the Department of Environment and Planning as follows:

“ Ref: Development Control Plan No. 20

Council has completed the planning process in respect of the above planning instrument, which is a policy for the operation of motor vehicle wreckers, metal recyclers, waste material depots and junk yards.

Pursuant to Clause 24(2A) of the Environmental Planning and Assessment Regulations a certified copy of Development Control Plan No. 20 is enclosed for your information.”

(v) On 17 December 1985 the Council adopted the recommendation of its Planning and Building Committee:

“(T)hat Council acknowledge the policy statements as outlined in the report as a redrafting of existing policy into a new and revised format and that such policies be re-confirmed on that basis.”
The Report accompanying that recommendation had discussed the earlier decision of the Council to establish “a policy manual/register” comprising a review of “adopted policies, statements of Council attitudes, guidelines and procedures on various subjects, together with other data that reflects Council’s views on policy related matters and issues”. The report stated that the objectives of the review included (i) the policies be written in a clear and concise manner, and (ii) the policies be regularly reviewed. The Report indicated that the task undertaken was to redraft existing policies in the new format, but otherwise to retain the status quo of policy content.

The Report submitted to the Council for reconfirmation, thirteen policy statements which were identified in the Report including the following:

“Policy No. 5.2.11 Motor Vehicle Wreckers, metal recyclers, waste depots and junk yards.”

(vi) On 22 March 1988 the Council endorsed “Council Policy No. 5.2.08” in its present form. A copy of the Policy is annexed hereto and marked “B” .

(vii) On 7 July 1992 the Council adopted the Recommendation of its Planning and Building Committee “(T)hat the Council endorse its Current Policies…..” and there is then reference to some 14 numbered policies including “Policy No. 5.2.08 Motor Vehicle Wreckers, Metal Recyclers, Waste Material Depots and Junk Yards - DCP 20”.

It is to be noted that a comparison of the two documents (copies of which are Annexures “A” and “B” hereto being respectively (i) the draft DCP and (ii) Council Policy 5.2.08) reveals the following:
(i.) The title or citation of each document is materially identical;
(ii.) The aims and objectives of the draft DCP are materially identical with the objective of the Council Policy Document;
(iii.) The draft DCP is expressed to apply “to land within Campbelltown upon which development for the purpose of motor vehicle wreckers, metal recyclers, waste material depots and junk yards may, with Council consent be carried out”, whereas the Council Policy Document does not state land to which it applies otherwise than by its reference to “industrial land” in its policy statement content;
(iv.) The draft DCP contains definitions of “junk yard”, “metal recycler” “motor vehicle wrecker” “registered motor vehicle” and “waste material depot” whereas the Council Policy Document contains no definitions;
(v.) The policy content contained in cl.6 of the draft DCP is identical with the “Policy Statement” of the Council’s Policy Document (except that the latter expressly refers to applications for development consent in respect of “industrial land’).
D. DETERMINATION OF DISPUTED ISSUE OF FACT

It is in the light of the foregoing evidence that the question must be answered whether the DCP relied upon by the Council as supporting (if not requiring) an affirmative answer to the question of law raised (because it is a further agreed fact that the proposed development does not propose compliance with the requirements of cl.6 of the DCP that all processes be conducted “within the confines of a fully enclosed building”) has been adopted by resolution of the Council.

Briefly stated, the question simply is this - Has the Council proved the adoption by resolution of the Council of the DCP?

Only if that fact is proved will it be necessary to proceed with the further and related questions (i) whether that DCP is relevantly “a development control plan” within the meaning of cl.4 of the IDO; and if so (ii) whether properly construed, the DCP applies to the proposed development.

It must at once be appreciated that the question is not simply whether the DCP has been adopted (or approved) by the Council. Rather, (and this flows from the express terms of cl. 4(1) of the IDO) the relevant question is whether it has been “adopted by resolution of the Council”. The obvious consequence of this express qualification is that it will not be sufficient to prove, for example, that the DCP was adopted or approved, on behalf of the Council by an authorised delegate, because such a decision could not be characterised as “adoption by resolution of the Council”. That requirement plainly is that it is the Council, in its corporate capacity (rather than acting via a delegate or agent) that must approve or adopt the plan.

It is at this very point that the proof tendered by the Council is found to be wanting, because although the documentary evidence may be sufficient (aided by the presumption omnia praesumuntur rite esse acta) to support a finding by inference that the DCP was approved or adopted, it is not sufficient to support the inference that it was adopted by the Council in its corporate capacity, by resolution of the Council.

An inference that the DCP was approved as a development control plan in terms of s.72 of the EP&A Act 1979 may, I think, be legitimately drawn from the fact that the Council “pursuant to cl.24(2A) of the Environmental Planning & Assessment Regulation 1980” forwarded a certified copy of the plan to the Secretary of the Department of Environment and Planning, in combination with the application of the presumption.

Clause 24 of the Regulation is contained in Part III of the Regulation which deals with the form and content and procedures for making a development control plan under s.72 of the EP&A Act.

Clause 24 (as in force in 1984) relevantly provided as follows:-

“24 (1) The council, after giving the notice and exhibiting the plan in accordance with clause 22, and after considering any submissions made under clause 23, may approve a draft development control plan —

(a) in the form in which it was publicly exhibited; or

(b) in that form with such alterations, arising from its consideration of the submissions, as the council thinks fit.

(2 ) A development control plan approved under subclause (1) shall come into force on the date (or from a later specified date) that public notice of its approval is given in a newspaper circulating at least once weekly in the locality of the land to which the development control plan applies.

(2A) The council shall furnish to the secretary a certified copy of any development control plan approved under subclause (1)”.

However, it must be realised that in terms of s.151 of the EP&A Act (as in force in 1984) all functions imposed upon a Council by or under the Act or the regulations may be delegated to an officer, servant or person or committee: vide subsection (1) .

Such “functions” obviously included the power conferred upon the Council by cl.24(1) of the Regulation to approve a draft development control plan.

It follows from the existence of s.151(1) of the EP&A Act that although the evidence supports a finding, by inference, that the Council approved the draft DCP, that finding includes the possibility that the approval of the DCP was given by an authorised delegate of the Council, and that possibility is just as probable as is the possibility that the Council approved the DCP in its corporate capacity, acting by resolution.

Faced with these equally competing possibilities, a preference for a finding in favour of approval by the Council in its corporate capacity is not assisted or advanced by the presumption omnia praesumuntur rite esse acta, simply because the function conferred upon the Council by cl.24(1) of the Regulation to approve a draft development control plan is exercisable as soundly and completely by a delegate, as it is by resolution in the corporate capacity of the Council.

The possibilities and probabilities being thus equally balanced, the Council which carries the onus of proof on the issue must fail. This is more especially the case here, where because of the obvious vital importance of the issue to the Applicant, it has justifiably put the Council to strict proof and the Council’s efforts to prove the fact have failed, and in particular have failed to provide any relevant resolution of the Council adopting of the DCP. If such a resolution were in fact made by the Council, its existence and proof of its existence is truly a simple matter of tendering the Council resolution. Moreover, because of the gravity of the fact to the outcome of the case, I would need to be comfortably satisfied that the Council had, in its corporate capacity by resolution, adopted the DCP: see s.140(2)(c) of the Evidence Act 1995. I am not so satisfied.

For all the foregoing reasons, I have not been persuaded of the fact that the Council by resolution adopted the DCP. Accordingly, the Council, having failed to prove an essential factor in its case, must fail and the question of law must be answered in the negative, simply because it has not been established that DCP No. 20 was relevantly adopted by resolution of the Council and accordingly, is relevant to cl.4 of the IDO.

In so concluding, I would reject the Council’s argument that the subsequent “acknowledgment”, “re-confirmation” or “endorsements” by the Council in its corporate capacity of the policy statements (that I have earlier referred to) relevantly operated as the adoption or approval by the Council of the DCP. This is because those decisions uniformly refer in terms to the “policy statements” or “policies” therein mentioned, and these references are not to the original DCP and do not constitute any ex post facto adoption of it.

In view of my conclusion that it has not been proved that the DCP was not relevantly “adopted by resolution of the Council” it is not strictly necessary to consider the other questions debated.

However, for completeness and lest I be wrong in that conclusion, I should briefly refer to these other questions. I do so on the assumption (contrary to my finding) that the DCP was relevantly adopted by resolution of the Council.
E. IS THE DCP THE PLAN CONTEMPLATED BY CL.4 OF THE IDO?

Upon that assumption, the next question to logically arise is whether the DCP is relevantly a “development control plan” within the meaning of cl.4 of the IDO.

In my opinion it is not such a plan. My principal reason for so concluding (and the conclusion is one of fact and of law) is that the documentary evidence adduced by the Council (Exhibit 3) clearly establishes that the Council was intending to make (and probably did make) a development control plan in terms of s.72 of the EP&A Act. Such a development control plan is something fundamentally different from the development control plan contemplated by cl.4 of the IDO (which came into force in 1977 i.e. some 3 years before the commencement of the EP&A Act): see Cleary v. Maitland City Council (1983) 51LGRA 85 at 88 per Cripps J which was recently followed by Lloyd J in Big Country Developments Pty Ltd v. Penrith Council (unreported 24 April 1998).

The Council’s argument that it is an irrelevant fact that the DCP was intentionally processed in accordance with the provisions of the EP&A Act and Regulation made thereunder as a development control plan within the meaning of those instruments, is entirely unpersuasive.

In effect, the Council’s argument is that an action taken intentionally to achieve a result X, and involving the statutory process for achieving that result and none other, nonetheless has effect (in fact and in law) of producing result Y. No authority or principle was advanced in support of the bare submission. It is, in my opinion, unsound and must be rejected.

This is not to deny that certain actions may have double effects. However, such double effects cannot be mutually exclusive, such as is the proposition (that was not advanced in argument, and in my opinion, properly so) that the DCP could operate with the double effect of being both (i) a development control plan in terms of s.72 of the EP&A Act and (ii) a development control plan for the purposes of cl.4 of the IDO.

As the cited cases demonstrate, there is a world of difference between a development control plan in terms of the EP&A Act and the creature of the same name, contemplated by cl.4 of the IDO. The latter has the potential to significantly change the operational and zoning provisions of the IDO (in a manner, I might observe in passing, that was consistently denounced by the former Land and Valuation Court e.g. see Austin Construction Co. (Aust) Pty Ltd v. North Sydney Municipal Council (1967) 14LGRA 154 at 158 and 159 and Peter Rommel & Associates Pty Ltd v. North Sydney Municipal Council (1971) 23LGRA 99 at 102 and 103.)

Moreover, given the very significant impact of the DCP on the forms of development that would otherwise be permissible within the Industrial 4(a) Zone in terms of the IDO (as demonstrated by the very facts of the present case) it is not readily to be supposed that the Minister, when making the IDO in 1977 containing cl.4, intended that a development control plan therein contemplated, could come into existence for the purposes of that clause, casually, accidentally or unintentionally. On the contrary, the exercise by the Council of what is in truth a quasi legislative power conferred by cl.4 of the IDO, would in my opinion, have to be fully conscious and intentional. (The solemnity of the power is attested by the requirement in its conferral that it be exercised by the Council adopting the plan “by resolution of the Council”). Moreover, there is not the slightest suggestion in the documentary evidence that the Council, in making and approving the DCP was aware of, or adverted to, cl.4 of the IDO.

For all the foregoing reasons, I would conclude that the DCP is not a development control plan within the meaning of cl.4 of the IDO.
F. THE AMBIT OF THE DCP

The final question debated concerned the ambit of the DCP and more particularly whether the Applicant’s proposed development falls within its ambit.

Upon reflection, I find this question so remote and academic, in view of my earlier conclusions that (i) the DCP was not adopted by resolution of the Council and (ii) in any event, is not a development control plan for the purposes of cl.4 of the IDO, that any consideration of it, even on the double assumption that both my earlier conclusions (which are capable of operating independently of each other) would be barely meaningful.

However, there remains the prospect (indeed the probability) that the DCP operates as a development control plan in terms of s.72 of the EP&A Act and therefore is potentially relevant to the determination of the Applicant’s development application in terms of s.90(1)(a)(iv) of that Act.

Accordingly, it is meaningful to address the question debated as to the ambit of the DCP on the basis that it operates as a development control plan in terms of s.72 of the EP&A Act.

The question is essentially one of construction, namely, granted that the Applicant’s proposed development may be aptly described or characterised as a “metal recycler” (additionally it may aptly be characterised as an (i) “industry” (agreed fact) and (ii) “metallurgy works” causing it to be “designated development” within the meaning of Schedule 3 to the Regulation), is it governed by the provisions of the DCP? (I put the question in that precise manner because obviously the DCP applies to the development site by virtue of cl.3.)

The very terms of the DCP instantly pose an interpretive dilemma because cl.5 defines each of the following forms of development as a “junk yard” as that term is defined in the Environmental Planning and Assessment Model Provisions 1980, namely:
(i.) metal recycler;
(ii.) motor vehicle wrecker; and
(iii.) waste material depot.

The Model provisions define “junk yard” as follows:

“`junk yard’ means land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or goods used for the collecting, dismantling, storage, salvaging or abandonment of automobiles or other vehicles or machinery or for the sale of parts thereof;”

What is the meaning and effect of these definitions (and particularly that of “metal recycler”) which are all brought squarely within the ambit of the definition of “junk yard”? Moreover, the definitions are, by virtue of the expression “has the meaning ascribed”, limiting rather than expanding: see Statutory Interpretation in Australia by Pearce & Geddes (3rd ed) at para 6.39 .

In construing the definitions, one logically commences with the presupposition that each of the four terms employed in the DCP (“motor vehicle wreckers”, “metal recyclers”, “waste material depot” and “junk yard”) are different types or categories or classifications of development. Each of the four terms is separately mentioned in each of the six clauses in the DCP.

Moreover, this logical presupposition accords with practicalities, since each of the four forms of development is recognisably a discrete form of development, although obviously having certain features in common, e.g. the reception and storage of used goods and materials. Moreover, some of the four forms of development have other common features - e.g. (i) motor vehicle wreckers and metal recyclers may each handle and process used motor vehicles etc. and (ii) waste material depots and junk yards normally deal in a much wider range of goods and materials than merely used motor vehicles or metals generally.

What, then, is the purpose and effect of the scheme of cl.5 in adopting the Model Provisions definition of “junk yard” and thereafter ascribing that meaning to each of the other three terms, thereby undermining or even defying the logic and practicality involved in the inherent discreteness of each of the four forms of development?

I must confer to experiencing extreme difficulty in discovering any such purpose or effect. Indeed, I think there is, unfortunately, a clear rift between purpose and effect. Clearly, the purpose (as expressed in the stated aims and objectives in cl.2) was to provide further planning controls for all four forms of development but the effect of the definition cl.5 is to confound or constrict that purpose. The purposive approach to construction would only secure the stated purpose if the definitions (except for “junk yard”) could be entirely set aside or ignored. However, such a radical step is not sanctioned, even by the purposive approach to statutory construction. Accordingly, I am left to grapple with the text.

In truth, the definitions (other than the definition of “junk yard”) appear to be misconceived and unintelligible.

However, and not without considerable difficulty, I think that the effect of the DCP is to impose controls on all four forms of development but only to the extent that each comes within the definition of junk yard with the legal consequence that to the extent that the forms of development (other than “junk yards”) involve activities or processes that necessarily exceed the boundaries set by the definition of “junk yard” they are not governed by the DCP.

In conclusion, it is to be noted that the Council’s Policy Statement (Annexure B hereto) which emanated from the DCP but which does not specify any definitions of the four forms of development, does not suffer the defects or deficiencies of the DCP.
G. CONCLUSIONS AND ORDERS

For all the foregoing reasons, I make the following orders.
1. The question of law is answered in the negative.
2. Exhibits to remain on Court file.
3. The question of costs is reserved.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 21 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.

Associate