David James Balcombe and Florence Mary Balcombe v Nambucca Shire Council [1998] Nswlec 162 (20 July 1998)

[1998] NSWLEC 162

Land and Environment Court

of New South Wales

CITATION:	DAVID JAMES BALCOMBE and FLORENCE MARY BALCOMBE v. NAMBUCCA SHIRE COUNCIL [1998] NSWLEC 162 (20 July 1998) [1998] NSWLEC 60
PARTIES:	DAVID JAMES BALCOMBE and FLORENCE MARY BALCOMBE v. NAMBUCCA SHIRE COUNCIL
FILE NUMBER(S):	40256 of 1997
CORAM:	Talbot J
KEY ISSUES:	:- LEP - construction where there are conflicting provisions Modification of development consent - whether new and prohibited use approved
LEGISLATION CITED:	EPA Act
CASES CITED:	Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at p 29; Londish v Knox Grammar School & Ors (1997) 97 LGERA 1)
DATES OF HEARING:	29 July 1998
DATE OF JUDGMENT:	07/30/1998
LEGAL REPRESENTATIVES:	Mr K E Roser (Barrister) Mr W O'Rourke (Solicitor)

JUDGMENT:

Introduction

On 17 May 1994 the second respondent, trading as Midcoast Trucks and Commercials, lodged an application for development consent with the first respondent council.

On 3 February 1995 the council issued a Notice of Determination of Development Consent to the proposed development of a motor showroom to be carried out in accordance with amended plans and details, Drawing No. DA01A Diagram 3 dated 18 July 1994 prepared by GHD Survey Pty Ltd, including some minor extensions to storage bays, subject to conditions, which included condition 18 and 19 as follows:-

18. Work on vehicles is limited to detailing only which is to be carried out within the building on the site. (No mechanical repairs, spray painting or panel beating is permitted). All vehicles associated with the use are to be kept wholly within the site behind the landscaped areas.

19. Normal hours of operation are limited to 8.00am to 6.00pm daily.

By letter dated 20 May 1997, the second respondents made application to have condition 18 amended to allow mechanical repairs to be carried out within the workshop on the site. The mechanical repairs were described as “… such thing as; registration related repairs ie brake or headlight replacements, gearbox or clutch replacements, engine and service repairs”.

The applicants, as owners of the caravan park next door, objected to the proposed modification by letter to the council.

On 17 July 1997 the council determined to modify the consent under s 102 of the EPA Act and amended condition 18 as follows:-

18a Work on vehicles is limited to detailing and mechanical repairs, motor rebuilding and overhauling, registration checks, road worthiness certificates and warranty repairs and is to be carried out only within the building on the site, with the rear doorways closed during mechanical repair work to reduce noise impact.

Major mechanical repairs, spray painting and panel beating is prohibited. All vehicles associated with the use are to be kept wholly within the site behind the landscaped areas.

Following receipt of a letter of concern from the applicants’ solicitors dated 1 August 1997, the council’s Director Environmental Services replied, inter alia, as follows:-

It is well established that related ancillary activities can be conducted in conjunction with an approved development. Council recognises this to be so in the case of this motor showroom and has no objection to limited mechanical repairs being undertaken within the building on the site.

The applicants seek relief by way of declaration and consequential orders on the basis that the approved development, as modified by condition 18, is prohibited.

The second respondents have entered a submitting appearance except as to costs. The applicants do not seek any relief directly against the second respondents.

The Relevant Planning Instrument

The LEP in force at the date of the determination of the application to modify the consent was Nambucca LEP 1995 dated 26 November 1995 and published in the New South Wales Government Gazette on 1 December 1995.

The land is within zone 1(a2) Rural (Prime Flooding). Industries (other than home industries, rural industries and extractive industries …) and motor showrooms are prohibited by the Table to cl 11 of the LEP.

However, cl 24(1) provides:-

24(1) The Council may grant consent to the carrying out of development for the purposes of an industry (other than a home industry or rural industry) on land within Zone No. 1(a1) (except land shown inside the broken black line on the map), 1(a2) or 1(f) if:

a) the Council considers that the land is appropriately located in relation to urban or rural-residential areas; and

b) the land is suitable and practical for that industry; and

c) the development will not adversely affect the use and enjoyment of any adjoining land; and

d) the development is located and designed to minimise any adverse environmental impact.

“Industry “ is defined in cl 5 of the LEP in the following terms:-

“industry” means the manufacturing, assembling, altering, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, processing or adapting of any goods or any articles for commercial purposes and includes the storage and servicing of vehicles and the stockpiling of extractive material.

Further cl 51 of the LEP provides:-

51.(1) Nothing in this plan prevents a person, with the consent of the Council, from carrying out development on land referred to in Schedule 5 for a purpose specified in relation to that land in that Schedule, subject to such conditions, if any, as are so specified.

(2) Subclause (1) does not affect the application, to or in respect of development to which this clause applies, of such of the provisions of this plan as are not inconsistent with that subclause or with a consent granted by the Council in respect of the development.

Schedule 5 includes the following additional use of land referring to the subject land:-

Lot 2, DP 245263, Nursery Road, Macksville - motor showroom (for commercial trucks) as per amended Drawing No. DA01A, Diagram 3, dated 18 July 1994, prepared by Gutteridge Haskins and Davey Pty Ltd, Consulting Engineers and Environmental Planners, deposited in the office of the Council.

It can be noticed that the use in Schedule 5 corresponds in relevant respects with the description of the proposed development in the original grant of development consent in 1995. The same description of the approved development as motor showroom and the condition for it to be carried out in accordance with the specified amended plans and details Drawing No. DA01A was reiterated in the form of modified consent issued by the council in July 1997.

The Issues

The applicants invite the Court to infer that, when it amended condition 18, the intention of the council was to permit an independent and separate use for the repair of motor vehicles. They say further that, when it imposed condition 18 in 1995, the council had recognised that the use of the land for motor vehicle repairs was prohibited.

Mr Roser for the applicants contends that, when viewed objectively, condition 18 does not limit the work permitted under cl 18a to vehicles offered for sale or returned subsequent to sale through the motor showroom. He says the amended condition 18 is in general terms and does not constrain the category of vehicle that can be repaired. Accordingly, the breadth of the condition demonstrates that it is not reasonably open to regard it as a modification of the motor showroom use or for it to be recognised as ancillary to that use.

On the other hand, the council’s solicitor, Mr O’Rourke, argues that the uses approved by condition 18 are permissible with consent by the operation of cl 24 of the LEP which has the effect of making the storage and servicing of vehicles permissible as an industry notwithstanding the prohibition in the Table to cl 11. Mr O’Rourke contends, correctly in my opinion, that the imposition of condition 18 in the original consent cannot raise an inference that development for the purpose of mechanical repairs was not permissible in the zone. The LEP which had effect in 1995 is not in evidence so that, even if it be relevant, it is not possible for the Court to say what development was permissible with consent at that time.

Mr O’Rourke points out that the consent as modified in 1997 refers to the same plans and that the amended condition 18 specifies the repairs are to take place within the building on the site.

There is no evidence to support a conclusion that the development the subject of the s 102 application was not substantially the same development. Apart from questions raised by the applicants in regard to condition 18, the approved use pursuant to the development consent as modified remains as a motor showroom.

Mr O’Rourke contends that the amendment to condition 18 merely removes the constraint on the carrying out of repairs but nevertheless allows them to be done only as ancillary to or as part of the development of the motor showroom.

Determination of the Issues

Clause 11, in contrast to cl 51, for example, is not expressed as being subject to any other provision in the LEP or qualified in any other respect. The resolution of any conflict between the prohibition in the land use table and cl 24 must therefore be dictated by the principle that where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant) (see: Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at p 29). The presumed intention of the maker of the LEP was for cl 24 to have a particular application. The contrariety between the two provisions is manifest and can only be rationally resolved by giving cl 24 an exclusory operation.

Accordingly, it was open for the council to regard the proposed use for the purpose of carrying out work on vehicles as being permissible with consent pursuant to cl 24 ( Londish v Knox Grammar School & Ors (1997) 97 LGERA 1).

There is no actual evidence to assist the Court to determine the basis for the council’s decision. Although the letter from the Director Environmental Services dated 27 August 1997 suggests that the council may have regarded the repair work as related ancillary activities, the statement cannot be taken as evidence of the view of the council at the time it made its decisions.

In the absence of any primary evidence of the matters the council took into account, the Court is not able to find, infer, or even suggest there was any failure on the part of the council to take into account relevant considerations or that it took into account any irrelevant considerations.

Condition 18 must be read in the context of the development consent to carry out the purpose of a motor showroom. The use for a motor showroom was the subject of the application presented to council in 1995 and maintained in 1997.

Whereas work on vehicles was limited to detailing and there was an express bar on mechanical repairs imposed by the original condition 18, the amendment did no more than relax that strict control to allow a wider range of work within the overall use for a motor showroom.

Condition 18 cannot be construed as authorising a separate and distinct use to that involved in a motor showroom. Read as part of the development consent for the primary purpose, it must be limited to work on vehicles associated with the approved use for a motor showroom.

When it modified the consent by amending condition 18, the council was only approving work on vehicles in the above circumstance. In that sense the work permitted is restricted to that which is ancillary to or forms part of the approved use. The fact that the authorised work might involve major undertakings, such as motor rebuilding and overhauling, does not mean that the modification necessarily leads to the approval of a different and distinct use.

By maintaining the motor showroom use as the only approved development, it was open for the council to modify the condition in the way that it did.

For all the above reasons, the challenge to the validity of the determination made on 17 July 1997 must fail. The application will be dismissed.

The applicants and the first respondent accept that the Court should exercise its judicial discretion in relation to the payment of costs in favour of the successful party. An order will be made accordingly.

The Court does not know the attitude of the second respondents who submitted to any order save as to costs. It will be appropriate for the costs as between the applicants and the second respondents to be reserved.

Orders

The formal orders of the Court are:-

1. Application dismissed.

2. The applicants are ordered to pay the costs of the first respondent.

3. The question of costs between the applicants and the second respondents is reserved.

4. The exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 8 PAGES ARE AT TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT

Associate