Davis v Pittwater Council

[2007] NSWLEC 657

Land and Environment Court

of New South Wales

CITATION:	Davis v Pittwater Council [2007] NSWLEC 657
PARTIES:	APPLICANT Raymond and Susanne Davis RESPONDENT Pittwater Council
FILE NUMBER(S):	10208 of 2007
CORAM:	Tuor C
KEY ISSUES:	Development Application :- Rural Industry - wholesale plant nursery, landscape supplies, recycling of green waste from the site and crushing of material. whether uses permissible in the zone
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980 Local Government Act 1919 Local Government Act 1993 Factories, Shops and Industries Act 1962 Pittwater Local Environmental Plan 1993
CASES CITED:	in Australian Native Landscapes Pty Ltd v Warringah Shire Council [1989] NSWLEC 3 ; James Godfrey v Wollondilly Shire Council [2007] NSWLEC; Domachuk v Baulkham Hills Shire Council (1992) 77 LGRA 395; Egan v Hawkesbury City Council (1993) 79 LGERA 321
DATES OF HEARING:	5 and 6 September 2007, written submissions 14 September 2007
DATE OF JUDGMENT:	5 October 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr M Flaherty, solicitor SOLICITORS Robert King and Associates RESPONDENT Ms M Carpenter, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

5 October 2007

10208 of 2007 Davis v Pittwater Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Pittwater Council (the council) of a development application (N0691/05) under the Environmental Planning and Assessment Act (EPA Act) for a nursery and landscape distributor at 138 Wirreanda Road, Ingleside (the site).

The site and its context

2 The site, being lot 1 DP522208 and lot 4 DP827539, has an area of 6.2 ha. The site is surrounded by bushland and a grassed buffer towards Wirreanda Road. The centre and lower portion of the site has been used for an earthmoving business and materials storage. The site is currently occupied by a number of structures, including a residential dwelling, caretakers cottage, sheds and machinery workshop and open parking areas. Council has questioned whether some of these structure have approval.

3 The area generally consists of dwelling houses on large allotments and a range of rural/commercial activities, including a retail nursery along Wirreanda Road.

The history of the proposal

4 The development application was lodged on 28 October 2005. It was notified and council received 9 submissions. The applicant was refused under council delegation on 9 March 2006.

The Proposal

5 The proposal is for the redevelopment of the site into a wholesale plant nursery and landscape distribution centre, primarily for the storage and distribution of mature palms and associated raw materials for landscaping purposes such as soils, sands, gravel, sandstone and green waste.

6 The proposed development includes:

· Construction of an administrative office

· Construction of an awning over and bunding around two existing fuel pumps

· Construction of a water quality pond

· Alterations and additions to an existing workshop/shed

· Recycling of green waste from the site

· Crushing (during construction period) of existing stockpiles of roof tiles, brick and concrete.

Planning Framework

7 The site is zoned 1(a) (Non-urban A) under Pittwater Local Environmental Plan 1993 (LEP 1993). The parties did not agree whether the proposal was permissible within the zone but agreed that I determine this as a preliminary point.

8 Clause 9 of LEP 2003 provides:

Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which -
(a) development may be carried out without development consent;
(b) development may be carried out only with development consent; and
(c) development is prohibited,
are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone.

9 The Table for Zone 1(a) (Non-urban “A”) provides:

1 Without development consent
Agriculture (other than pig-keeping or poultry farming); forestry.

2. Only with development consent
Any purpose other than a purpose for which development may be carried out without development consent or a purpose for which development is prohibited.

3. Prohibited
Boarding-houses; bulk stores; car repair stations; commercial premises (other than animal training or boarding establishments, caravan parks, veterinary clinics or riding schools); dwelling-houses; heliports; industries (other than rural industries, home industries, extractive industries or industries directly associated or connected with, or dependent upon, extractive industries); junk yards; motor showrooms; recreation establishments; residential flat buildings; shops; warehouses.

10 Clause 6 of LEP 2003 adopts the Environmental Planning and Assessment Model Provisions 1980 (Model Provisions) except for certain definitions contained in cl 6(1 )(a).

5. The relevant definitions in the model provisions are:

"bulk store" means a building or place used for the bulk storage of goods, where the goods stored or to be stored are not required for use in a shop or commercial premises on the same parcel of land or on adjoining land in the same ownership.

"extractive industry" means:
(a) the winning of extractive material, or
(b) an undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on, and includes any washing, crushing, grinding, milling or separating into different sizes of that extractive material on that land.

"extractive material" means sand, gravel, clay, turf, soil, rock, stone or similar substances.

"industry" means:
(a) any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962, or
(b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business,
but does not include an extractive industry.

"retail plant nursery" means a building or place used for both the growing and retail selling of plants, whether or not ancillary products are sold therein.

"rural industry" means handling, treating, processing or packing of primary products and includes the servicing in a workshop of plant or equipment used for rural purposes in the locality.

"warehouse" means a building or place used for the storage of goods, merchandise or materials pending their sale and distribution to persons engaged in the retail trade.

11 "Agriculture" is defined in Clause 4 of the Model Provisions to have the meaning prescribed to it in Section 514A of the Local Government Act 1919. This act was repealed in 1993 by Local Government Act 1993 (the 1993 Act). There is no equivalent definition in the 1993 Act.

12 The Local Government Act 1919 defined "Agriculture" in Section 514A as follows

Agriculture and Cultivation includes Horticulture and the use of land for any purpose of husbandry including the keeping or breeding of livestock, poultry or bees and the growing of fruit, vegetables and the like.

The evidence

13 The Court heard expert evidence on whether the proposed uses are permissible within the zone from Mr I Ezzy architect for the proposal, for the applicant and Ms L Haidari, town planner, for the council.

14 Mr Ezzy considered the proposal to be a rural industry/agriculture being primarily for the growing of palm trees to maturity, including re-bagging and general maintenance of the trees.

15 Ms Haidari considered that:

The application has failed to demonstrate that all the proposed and/or existing activities, and associated construction works to provide for those activities, meet the definitions of ‘rural industry’ and/or agriculture, pursuant to Pittwater LEP1993.

16 Under cross examination Ms Haidari agreed that an appropriate definition of “primary products” was “products composed of natural matter or matter developed by natural means”. She agreed that, with the exception of gravel, the products identified as part of the proposed development met this definition.

17 The parties filed written submissions on the permissibility of the proposed uses on 14 September 2007.

Applicant’s submission

18 Mr Flaherty, for the applicant, submits that the proposed use can be catagorised as “agriculture” and “rural industry” which are both permissible within the zone. The definition of “rural industry” in the model provisions is centred on “primary products”. A primary product is a product not already processed or packed. This submission is consistent with the judgement of Bignold J in Australian Native Landscapes Pty Ltd v Warringah Shire Council [1989] NSWLEC 3 and Jagot J in James Godfrey v Wollondilly Shire Council [2007] NSWLEC a “primary product” is “composed of natural matter or matter developed by natural means”.

19 Mr Flaherty submits that based on the evidence of both Mr Ezzy and Ms Haidari, the products sold on the site are primary products. Ms Haidari questioned gravel as a primary product but Mr Flaherty referred to Australian Native Landscapes were Bignold J did not accept that gravel was a product of primary industry rather than primary production. He held 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”.

20 Mr Flaherty did not make submissions on the other proposed uses being the green waste recycling, the temporary crushing of tiles, bricks and concrete and the administrative office.

21 Ms Carpenter, for the council, submits that the applicant had not provided adequate information to assess the permissibility of the proposed development. However, during the course of the hearing, the use had been further clarified. Ms Carpenter summarised the proposal as comprising:

The mature palms and other trees (not specifically identified)
The storage of bulk raw material
The green waste recycling operation
The crushing of the existing stockpile of brick, concrete and roof tiles
The construction of the administrative office.

22 Ms Carpenter refutes the applicant’s characterisation of the uses as “agriculture” and “rural industry” as the mature palms and trees are produced off-site, the trees have undergone their primary production or harvesting before reaching the site. The proposed development is not a "rural industry" because the activities which are to be expected in a "rural industry" such as harvesting, growing, cultivation in the pots or otherwise have been done prior to the applicants' taking delivery of the trees. The proposed development simply aims to store mature trees in bulk on-site for a period before selling them.

23 Ms Carpenter makes the same submission in respect of the storage of bulk raw material, which is imported onto the site and sold without further processing or handling. Both uses, she submits, are properly characterised as a "bulk store" or "warehouse" which are prohibited uses within the zone.

24 The green waste recycling facility cannot be categorised as a rural industry as it is not, in Ms Carpenter’s submission, a primary product. She acknowledged that Bignold J in Australian Native Landscapes accepted a definition of “primary products” as “products composed of natural matter or matter developed by natural means”. However, she submits that the later approach adopted by Stein J in Domachuk v Baulkham Hills Shire Council (1992) 77 LGRA 395 is more applicable to the facts of this case. His Honour said that "primary" connotes being of the first order. The proposed green waste is not of the first order and therefore not a primary product but is an industry as it is a manufacturing process and is therefore prohibited in the zone.

25 Similarly, Ms Carpenter submits that the crushing of the existing stockpile of roof tiles, bricks and concrete is industry, consistent with the decision of the Court of Appeal in Egan v Hawkesbury City Council (1993) 79 LGERA 321 which held that a sandstone quarry which included site crushing activities came within the definition of industry which is prohibited in the zone except for “rural industries” and “extractive industries”. Further the crushing of tiles, bricks and concrete was not “rural industries” or “extractive industries”.

26 Ms Carpenter accepted that if the other uses were found to be permissible the construction of the Administrative offices may be ancillary to a permitted use.

Findings

27 The primary use of the site is for a wholesale plant nursery and landscape distribution centre with others uses being the green waste recycling and the temporary crushing of materials. There is no definition of “wholesale plant nursery” or “landscape distributor” in LEP1993 or the Model Provisions.

28 The different positions can be summarised as the applicant submits that the uses can be characterised as “agriculture” and “rural industry”. The council submits that the plant nursery and landscape supplies are "bulk store" or "warehouse" with the other uses being “industry”. These terms are defined in LEP 1993 and the Model Provisions.

29 In the 1(a) (Non-urban A) zone, all development is permissible with consent unless permissible without consent or prohibited. “Agriculture” is permissible without consent. “Bulk store”, “warehouse” and “industry” are prohibited. “Rural industry” and “retail plant nursery” are neither permissible without consent or prohibited and they, and other innominate uses, are therefore permissible with consent.

30 If the applicant’s submission is adopted, a merit assessment of the development application is required and if the council’s submission is adopted the development application is prohibited and the appeal must be dismissed.

31 The key question before the Court is whether the proposed uses on the site can be characterised as any of the uses which are prohibited within the zone. It is not necessary to classify the uses into a category of development defined in the LEP but rather to be satisfied that the uses do not fall within a prohibited category.

32 Ms Carpenter’s submission is that, based on the description in the Statement of Environmental Effects, the site is used primarily for the storage and distribution of mature palms and is therefore characterised as a “bulk store” or “warehouse”. In her submission the palms and trees are not a “rural industry” as activities such as harvesting, growing, cultivation in pots or otherwise have occurred off site. I do not accept this submission, as even if the palms are on the site for a short period of time they will require cultivation through watering, changing soil, pots etc and they are constantly growing. A palm is clearly composed of natural matter and is therefore a “primary product” which is “handled” and “treated” on site and is therefore more appropriately characterised as a “rural industry” than a “bulk store” or a “warehouse” which are primarily for storage of goods or materials.

33 Ms Carpenter proffers a similar submission in relation to the landscape supplies. She submits that this use involves the storage of bulk raw material, which “is merely imported onto the site and sold without further processing or handling”. As I understand the operation of the facility the dominant use relates to the mature palms and trees; the bulk raw materials are predominantly utilised to plant and maintain these trees, both on site and when on sold. The sale of landscape supplies can therefore be characterised as ancillary to the wholesale nursery use. Even if classified as a separate use it is more appropriately characterised as “rural industry” than “bulk store” or warehouse” as it comprises primary products which will be handled, even if only to place them into bags for sale.

34 Ms Carpenter’s submission in relation to the green waste relies on this being essential an ingredient in a manufacturing process and therefore industry. I do not accept this submission. Based on the oral evidence the green waste is from the palms and trees on site, which will be mulched and then on sold. This activity is clearly processing of a primary product, being a product composed of natural matter.

35 The green waste recycling is different to the facts considered by Stein J in Domachuk where his honour answered the question:

Are the various items imported onto the site “primary products”? What is a “primary product” for the purposes of the definition in the local environmental plan? In my opinion “primary” connotes being of the first order so, for example, a grain is a primary product. The handling, processing or packing of grain would therefore be a rural industry. Here a large number of products, which are brought onto the site, are claimed to be primary products, for example, rice hulls, peat moss, sawdust, sand, perlite, vermiculite, pine and other bark, wood chips and leaf mould. These come to the site in different containers, some in bags. They are mixed by various processes to manufacture the different types of potting mixes, which are then bagged and labelled for sale.

36 His Honour found that the products had ceased to be primary products and the activities not a “rural industry” but more in the nature of an industry involving manufacturing processes.

37 In Domachuk his Honour found the manufacturing of the potting mixes to be the dominant activity. In this case, the green waste recycling activity is not the dominant use occurring on the site. It involves processing products from the trees on the site, rather than material imported to the site. Because the green waste is at the “end of its life” does not mean it is not “of the first order” or ceased to be primary products.

38 During the hearing the applicant indicated that it was proposed to also import green wast onto the site for processing. While this is alluded to in the Statement of Environmental Effects and Management Plan it is not explicit and the application was not notified or assessed on the basis of this activity forming part of the Application. The Applicant did not seek to amend the application to incorporate this use and I have not considered whether green waste imported onto the site to be shredded and then on sold would be permissible within the zone.

39 The crushing activity is not described in the Statement of Environmental Effects, but as I understand the evidence it involves crushing of tiles, bricks and concrete that has been stockpiled on the site. The crushed material will then be on sold. The activity is proposed to occur during the construction works on the site for a temporary period.

40 The applicant has made no submission on the permissibility of this use and the council considers it to be industry and therefore prohibited within the zone except for “rural industries” or “extractive industries”. I accept the Council’s submission.

41 The activity, as described is of the nature of industry. Tiles, bricks and concrete are not primary products and therefore not “rural industry” nor does the use conform to the definition of “extractive industry” which permits crushing but only as an undertaking which depends on the winning of extractive material from the site. The material is not “extractive material” nor is it extracted from the site.

42 As the activity is temporary it would be logical to process the stockpiles on site rather than removing them or leaving them in situ. However, no submission was put before me that temporary uses may be permissible within the zone.

43 I accept Ms Carpenter’s submission that the administrative offices are ancillary to the other uses.

44 For these reasons, I do not accept Council’s submissions that the 1(a) (Non-urban A) zoning table in LEP 2003 prohibits the proposed activities, with the exception of the crushing of waste material on site. The activities are permissible with consent as a rural industry comprising a wholesale plant nursery for mature palms and other trees and associated raw materials for landscaping purposes such as soils, sands, gravel, sandstone and green waste; the processing of green waste from materials on site and administrative offices.

Other issues

45 The parties have not made submissions regarding the merits of the case. During the hearing the acoustic experts agreed that further testing was required to determine the noise level of the raw materials collection and recommended changes to the existing mechanics workshop/shed.

46 Council questioned whether existing facilities on the site had formal approval and whether alterations to the mechanics workshop/shed and fuel tanks could therefore be approved. However, it has not sought to amend the Statement of Facts and Contentions or sought to adduce evidence on this issue.

47 A clear description of the proposal is not contained in either the Amended Statement of Environmental Effects or the Plan of Management. Both include references to the recycling of green waste obtained off the site which does not form of the application and neither is explicit about the wholesale operation of the nursery and landscape supplies. Clearly a retail and wholesale plant nursery would have different amenity impacts such as traffic generation and access requirements. Presumably any consent would include a condition that the development operate in accordance with the Plan of Management, in which case this should be amended to accurately reflect the activities that are to occur on the site, including an accurate description of the uses and their location, an explanation of the wholesale operation (no sales to the general public), maximum truck movements per day, hours of operation etc. Any consent must also include an accurate description of the works to be approved.

Directions

48 The Court directs that by 19 October 2007, the Parties are to provide, by e-court, a timetable for the completion of the appeal and the provision of additional information including:

i. The additional acoustic report

ii. Whether approval of the existing structures is to be raised as an issue.

iii. Accurate description of the proposal for which consent is sought

iv. Amended Plan of Management

v. Amended conditions of approval

__________________
Annelise Tuor
Commissioner of the Court