Gales Holdings Pty Ltd v Tweed Shire Council
[1999] NSWLEC 195
•31 August 1999
Land and Environment Court
of New South Wales
CITATION:
Gales Holdings Pty Ltd v Tweed Shire Council [1999] NSWLEC 195
PARTIES
Applicant: Gales Holdings Pty Ltd Respondent: Tweed Shire Council
NUMBER:
40099 of 1999
CORAM:
Lloyd J
KEY ISSUES:
Judicial Review :- whether "activity" in s 110 EP&A Act is a jurisdictional provision? - Wednesbury unreasonableness
LEGISLATION CITED:
Environmental Planning & Assessment Act 1979, s 110
Environmental Planning & Assessment Model Provisions 1980 cl 35, Schedule 1 cl 2
State Environmental Planning Policy No 33 - Hazardous and offensive development, cl 7
State Environmental Planning Policy No 4, cl 11
Tweed Local Environmental Plan 1987
DATES OF HEARING:
07/27/1999; 07/28/1999; 07/29/1999
DATE OF JUDGMENT DELIVERY:
08/31/1999
LEGAL REPRESENTATIVES:
Respondent: J J Webster (barrister)
Applicant: T F Robertson (barrister)
Solicitors: Woolf Associates
Solicitors: Halliday & Stainlay
JUDGMENT:
Contents
Page
Introduction 1
The relevant provisions 8
The relevant facts 17
An “activity” under Part 5 or “development” under Part 4? 36
Conclusion 71
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date:
Gales Holdings Pty Ltd
Applicant
v
Tweed Shire Council
Respondent
JUDGMENT
HIS HONOUR:
Introduction
1. The applicant seeks a declaration that the development by the respondent, Tweed Shire Council (“the Council”), of a commercial turf farm on Lot 32 in Deposited Plan 847319, Chinderah Road, Chinderah is prohibited by the Tweed Local Environmental Plan 1987 (“the LEP”) or alternatively is permissible only with consent under Part 4 of the Environmental Planning & Assessment Act 1979 (“the Act”). The applicant also seeks an injunction restraining the Council from using or permitting the use of the land for the said purpose.
2. The land on which the Council proposes to establish the turf farm comprises an area of about 25 hectares of which about 15.4 hectares will be used for turf production. The land on which the turf farm is to be established is adjacent to the Chinderah Sewage Treatment Works which are also within Lot 32 in Deposited Plan 847319. It is proposed to irrigate the turf farm with treated effluent from the sewerage treatment works and to apply treated sludge (also known as bio-solids) from the treatment works to the turf as a soil replacement and ameliorant. The turf farm will be operated as a commercial enterprise by private management under a management agreement between a private operator and the Council. The land has two characteristics which are said by the applicant to make it unsuitable for the purpose, namely soil of a high permeability and a high groundwater table which is generally between one and two metres below the surface.
3. There was a previous attempt to establish a turf farm on the land. On 8 April 1993 the Council granted development consent to itself under Part 4 of the Act for the establishment of a turf farm on the land. The development was designated development. An objector to the development exercised the right of appeal afforded by s 98 of the Act and appealed to the Court against the Council’s determination to grant consent to the development. The appeal was heard by Bignold J in which the Council was legally represented but the appellant objector was unrepresented. In a reserved judgment ( Rudman v Tweed Council, 28 September 1993, unreported) Bignold J allowed the appeal on the merits and refused development consent. In the course of doing so, however, Bignold J discussed the characterising of the use and made the obiter observation that the use may not be governed by Part 4 of the Act but would involve an “ activity ” within the meaning of s 110 and be subject to the regime for environmental assessment under Part 5 of the Act. Nevertheless, since neither party pressed the Court to so conclude, Bignold J determined the matter as arising under Part 4.
4. Following Bignold J’s judgment the Council obtained legal advice, which was to the effect that the proposed turf farm is associated with a sewerage treatment plant, which is not subject to Part 4 of the Act and the proposal should be assessed under Part 5 of the Act. Thereafter the Council commissioned the preparation of an environmental impact statement (“EIS”) as required by s 112 and duly granted its approval to the proposal under Part 5.
5. The land on which the turf farm is to be established is within zone No 4(a) (Industrial Zone) under the LEP. Development which is permissible without consent under the zoning table is “ home occupations ”. The zoning table lists a number of uses which are prohibited and which include “ offensive or hazardous industries”. Development for any purpose which is neither permissible without consent nor prohibited may, under the zoning table, be carried out only with development consent.
6. Mr T F Robertson, who appears for the applicant, submits that the turf farm is an offensive or hazardous industry and is thus prohibited in the zone. Alternatively, he submits that if it is not an offensive or hazardous industry it is development which is permissible with development consent under Part 4 of the Act and such consent has not been granted. In Mr Robertson’s submission the turf farm is not an “ acitivity ” for the purpose of s 110 and is thus not subject to the environmental assessment procedures under Part 5 of the Act.
7. Mr J J Webster, who appears for the Council, submits that Part 4 of the Act does not apply to the proposal, that it is subject to environmental assessment under Part 5 (which has been done) and that the Council’s classification of the proposal as an “ activity ” within the meaning of s 110 was a question of fact which cannot be disturbed. Mr Robertson, on the other hand, contends that the question of whether the proposal is an “ activity ” within the meaning of s 110 is akin to a jurisdictional fact and is thus reviewable by the Court. Mr Robertson further contends that in any event the Council’s classification of the proposal, even if it is not akin to a jurisdictional fact, is one which is not reasonably open and may thus be set aside.
The relevant provisions
8. Part 5 of the Act relates to the granting of an approval to, or the carrying out, of an “ activity ” as defined in s 110. It provides a scheme for the environmental assessment of activities which are not governed by the environmental planning controls under Part 4 of the Act. The word “ activity ” is widely defined by s 110. The definition goes on to provide, however, that it does not include: “ (g) any act matter or thing for which development consent under Part 4 is required or has been obtained, or (h) any act, matter or thing which is prohibited under an environmental planning instrument, ....”.
9. It is clear that by reason of the definition of “ activity ” in s 110 the proposed turf farm would be an activity for the purpose of Part 5 unless it is excluded therefrom by reason of the need to obtain development consent under Part 4 or is excluded therefrom by reason of the fact that it is prohibited development under Part 4.
10. I have referred (in paragraph 5 above) to the zoning table. The definition of “ offensive or hazardous industry ” is governed by State Environmental Planning Policy No 33 - Hazardous & Offensive Development (“SEPP 33”). Clause 4 of SEPP 33 contains definitions of “ hazardous industry ” and “ offensive industry ”. Clause 7 relevantly provides:
In an environmental planning instrument (whether made before, on, or after the date on which this Policy takes effect) a reference to:
(a) an offensive or hazardous industry, however defined in that instrument, is to be taken to be a reference to development for the purpose of an industry (as defined in that instrument) that is a hazardous industry or an offensive industry within the meaning of clause 4; and
....
11. The LEP adopts, with certain exceptions, the Environmental Planning & Assessment Model Provisions 1980 (“the Model Provisions”). One of the exceptions is the definition of “ extractive industry ”. Accordingly, for the purpose of the LEP the definition of “ industry ” in the Model Provisions applies. That definition, however, excludes an extractive industry. The definition of “ extractive industry ” as defined in the LEP is thus relevant, viz: “ (a) the winning of extractive material; or (b) an industry or undertaking, not being a mine, which depends on the winning of extractive material from the land on which it is carried on ”. “ Extractive material ” is not defined in the LEP. The definition of “ extractive material ” in the Model Provisions, adopted for the purpose of the LEP, is thus relevant. That definition includes “ turf ”. In Coffs Harbour City Council v 36 Dean Street Pty Ltd (15 March 1996, unreported) Bannon J held that turf farming is an extractive industry. As noted (in paragraph 5 above) an extractive industry is development which is neither permissible without consent nor prohibited and may thus be carried out with development consent.
12. I observe from the above provisions that an offensive or hazardous industry must be an industry as defined in the LEP; and since an extractive industry is excluded from the relevant definition of industry under the LEP, then the proposed turf farm could not be the prohibited development of an offensive or hazardous industry under the zoning table. The turf farm being an extractive industry is permissible with development consent under Part 4 of the Act.
13. That is not, however, the end of the matter. The turf farm is to be irrigated with treated effluent from the adjoining sewerage treatment works and is to receive treated bio-solids from those works. The Council relies upon State Environmental Planning Policy No 4 (“SEPP 4”), clause 11 and the Model Provisions, clause 35 to say that development consent is not required. If development consent is not required then it is an activity as defined by s 110 and is thus subject to the environmental assessment procedure under Part 5 of the Act.
14. Clause 11 of SEPP 4 provides:
Where, in the absence of this clause, development, being the construction of water storage dams, sewage treatment works or electricity transmission lines by or on behalf of a public authority may be carried out only with development consent being obtained therefor, that development may be carried out without that consent.
....
15. Clause 35 of the Model Provisions relevantly provides:
Nothing in the local environmental plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit:
(a) the carrying out of development of any description in Schedule 1;
...
16. Clause 2 of Schedule 1 of the Model Provisions lists the following development:
The carrying out by persons carrying on public utility undertakings, being water, sewerage, drainage, electricity or gas undertakings, of any of the following development, being development required for the purpose of their undertakings, that is to say -
(a) development of any description at or below the surface of the ground;
(b) the installation of any plant inside a building ...;
(c) the installation or erection of any plant or other structures or erections by way of addition to or replacement or extension of plant or structures or erections already installed or erected, ..., but not including the erection of overhead lines or the supply of electricity or pipes above the surface of the ground for the supply of water, ... ;
(f) any other development except -...
(ii) the formation or alteration of any means of access to a road.(i) the erection of buildings, the installation or erection of plant or other structures or erections and the reconstruction or alteration, so as materially to affect the design or external appearance thereof, of buildings; or
The relevant facts
17. It is necessary to refer to the proposed development itself in order to see how it relates to the above described statutory provisions.
18. Following the delivery of the judgment of Bignold J in Rudman v Tweed Council , the Council received the legal advice to which I have referred (in paragraph 4 above) and on 2 March 1994 it resolved to proceed “ with the preparation and submission of a Part 5 environmental assessment in accordance with clause 11 of State Environmental Planning Policy No 4”. The Council commissioned Martin Findlater & Associates Pty Ltd to prepare an EIS pursuant to s 112 of the Act.
19. The EIS was duly prepared for an activity described as “ Proposed Disposal of Effluent and Biosolids by Application to Turf ” at the Chinderah Sewage Treatment Works, Lot 32 DP 847319 Chinderah Road. The executive summary of the EIS states that the object of the proposal is “ to undertake a financially viable sewage effluent and biosolid disposal scheme ”. The executive summary of the EIS also states: “ The activity is part of the operation of the sewage treatment works. As such, approval is sought under Part V of the Environmental Planning & Assessment Act 1979 ”. In the section of the EIS on statutory planning is the following statement:
The proposal is classified as Sewage Treatment Works. The activity requires Tweed Council approval under the Tweed Council Local Environmental Plan 1987 and clause 35 of the EP&A Act Model Provisions . Consent cannot be prohibited. The determining authority must consider the environmental impact of the activity under Part 5 of the EP&A Act 1979.
20. Under the heading “ Description of the Proposal ” the EIS lists the following objectives:
(a) provide a supplementary means of disposal of treated effluent from the Chinderah Sewage Treatment Plant through a reuse scheme as a primary objective;
(b) provide a means of disposal of treated biosolids from treatment plants within the shire as a secondary objective;
(c) utilise the commercial capability of currently unproductive land surrounding the treatment works;
(d) reduce the direct cost to the community of sewage disposal by offsetting against an income earning commercial activity;
(e) provide funds to finance less profitable reuse schemes within the Shire;
(f) encourage a beneficial use of biosolids of an acceptable level and complying with the statutory requirements of regulatory authorities.
21. Under the heading “ Operational Plan ” the EIS states:
The activity can be considered in two parts. The first being the use of treated waste from the treatment plant while the second is the operation of turf harvesting .
22. The EIS states that the effluent will be applied by a fixed sprinkler system. Effluent irrigation will be supplemented by fertilisers and applications of herbicide and pesticide. The EIS states that the treated biosolids will be incorporated into the soil prior to planting and again after each harvest as a top dressing. The EIS states that the turf will be grown and harvested by private management under a lease arrangement with the Council and under a management plan. The project will have an indefinite life.
23. On 6 September 1995 the Council considered a report on the “ proposal to dispose of effluent and bio-solids by application to turf at the existing sewerage treatment plant at Chinderah ” . The report states ( inter alia ):
The application has been lodged as a proposed activity under Part V of the EPA Act and attendant regulations by way of being exempted from requiring development consent under Part IV of the Act pursuant to clause 11(1) of SEPP No 4 - Development Without Consent.
The report also states:
The proposal is classified as Sewerage Treatment Works.
24. On 6 September 1995 the Council resolved:
that subject to a formal response from the Department of Urban Affairs & Planning in accordance with s 113 of the Act that does not raise any additional issues, approval of the application for the disposal of bio-solids and effluent by way of application to turf at the existing Chinderah Sewerage Treatment Works on Lot 32 in DP 847319 Chinderah Road, Chinderah in accordance with the provisions of Part V of the Act be delegated to the General Manager, and that such approval be subject to compliance with the following conditions: ...
25. On 18 September 1995 the Assistant Director of the Department of Urban Affairs & Planning sent a letter to the Council which stated, inter alia , that the Department considers that Tweed Shire Council does not have adequate information to determine the application.
26. On 21 September 1995 Martin Findlater & Associates Pty Ltd, which had prepared the EIS, wrote to the Council in relation to the Department’s letter. The letter states, in part:
The activity proposed and described (s 2.3.1) in the EIS is quite specific.
It is the disposal of TREATED effluent and biosolids. The level of treatment is also specific. Effluent is to be treated to Category B level. Biosolids are to be treated to Unrestricted Use or Restricted Use 1 level.
The activity of obtaining that level of treatment is not the subject of this proposal ...
27. On 6 March 1996 the Council resolved to use biosolids from the Chinderah Sewage Treatment Works only, for application on the turf farm.
28. On 19 June 1996 the Council resolved “ that the application for the disposal of bio-solids and effluent by way of application to turf at the existing Chinderah Sewerage Treatment Works on Lot 32 in DP847319 Chinderah Road, Chinderah be approved in accordance with the provisions of Part V of the Environmental Planning & Assessment Act 1979 ” subject to a number of conditions. One of the conditions requires the preparation of an environmental management plan which shall operate as a code of practice in relation to the activity.
29. In July 1997 the Council published a document entitled “ Kingscliff Wastewater Study ” which it described as an Information Kit. The document states: “ This kit contains background information and facts regarding the Kingscliff Wastewater Study ”. The document seeks community input into developing a further wastewater strategy for the Kingscliff catchment area, which will form part of an EIS for the upgrading of the existing Kingscliff Treatment Plant. (The reference in the document to the Kingscliff Treatment Plant is a reference to the Chinderah Sewerage Treatment Plant.) The document refers to “ further re-use and disposal options ” as including “ disposal of treated wastewater and biosolids (sludge) to a turf farm ”. The document refers to the existing position: “ Treated wastewater from Kingscliff Treatment Plant is discharged continuously to the Tweed River via an effluent pipe ”. Under the heading “ Re-use and Disposal Options ” the document states: “ Treated wastewater re-use is the use of treated wastewater in any beneficial manner without undue risk to the community ”. Under the heading “ Current Initiatives ” the document refers to the Council’s approval for a turf farm at Chinderah which would use “ treated wastewater ” and the potential use of “ treated biosolids ”. The document refers to other re-use initiatives as including:
Tyalgum - 100 percent dry weather irrigation for pasture grass.
Tweed Heads/Coolangatta Golf Club is a significant user of treated wastewater from the Banora Point Treatment Plant.
Cudgen small crop farmer uses up to 200 kilolitres a/day, which is equivalent to more than half of a normal household’s annual consumption of water.
Hastings Point Treatment Plan has 100% dry weather disposal to the adjacent dune system .
30. The proposed turf farm is not the only development which will utilise treated effluent from the Chinderah Sewage Treatment Works. On 9 February 1998 the Environment Protection Authority granted an approval under s 17K of the Pollution Control Act 1970 for the irrigation of a tea tree plantation on other land at Chinderah with treated effluent piped from the Chinderah Sewerage Treatment Works. On 25 February 1998 the Council granted development consent pursuant to s 92 of the EP&A Act for the construction of a pipeline from the Chinderah Sewerage Treatment Works to the tea tree plantation for that irrigation project.
31. In October 1997 the Environment Protection Authority issued environmental guidelines for the use and disposal of biosolids products. The guidelines acknowledge that “ the New South Wales government has been re-evaluating how sewage should be treated and disposed of ” . The guidelines contain a section which sets out requirements which apply specifically to the application of biosolids on land used for agriculture. The guidelines define “ agricultural land ” as including “ horticulture, turf and any purpose of husbandry ”. The guidelines also contain a definition of “ sewage treatment plant ”, which is as follows: “ The processing facility that treats sewage to render it acceptable for discharge into the environment and which, as a result, produces biosolids, effluent and minor residuals ” . The term “ surface land disposal ” is also defined in the guidelines as follows: “ Waste disposal area within sewage treatment plants (licensed and approved by the EPA) where the biosolids are not buried but applied to the surface at rates that exceed the requirements of beneficial land application or where the application has no intended beneficial use ”. The application of biosolids to the proposed turf farm does not fall within this definition, since the rates of application will not exceed the requirements of beneficial land application and, moreover, the application has an intended beneficial use. The term “ land disposal ” is defined in the guidelines as “ the application of biosolids where beneficial use is not an objective. Disposal will normally result in application at rates which exceed the nutrient requirements of crops, pastures or plants, or the requirement for organic matter ”. Again and for the same reasons the application of biosolids to the proposed turf farm does not fall within this definition.
32. In February 1995 the Environment Protection Authority had issued draft environmental guidelines for “ The Utilisation of Treated Effluent by Irrigation ”. The guidelines contain the following statements:
This document applies to the beneficial use, by irrigation, of a wide range of rural and industrial effluents, including secondary treated sewage effluent ....
The traditional approach has been to dispose of wastewaters by land application, using the land as a cheap means of treating (or “ renovating ”) the wastewaters. This document presents a conceptual shift towards the acceptance of treated wastewater as a resource available for utilisation, rather than a waste requiring disposal. Hence the document presents guidelines to assist designers and operators to optimise the value of effluent in an agronomic system which is ecologically sustainable.
....
The EPA’s wastewater management policy is to encourage the utilisation of effluent where it is safe and practicable to do so and where it provides the best environmental outcome. The EPA especially encourages the substitution of treated effluent for fresh/potable water wherever potable water is being used for non-potable purposes eg irrigation of crops and pastures .
33. The management plan, referred to in the conditions of approval, was also prepared by Martin Findlater & Associates Pty Ltd. Under the heading “ Responsibilities ” the management plan contains the following statement:
Tweed Shire Council as owner of the Chinderah Sewage Treatment Works is responsible for the Sewage Treatment Works including the area reserved for disposing of effluent and biosolids on turf. The Council may enter into a management agreement with an independent operator to be known as the Turf Farm Manager (TFM). The TFM will be responsible for the growing, harvesting and sale of the turf and other activities as agreed.
34. Under the heading “ Description of the Activity ” the management plan contains the following statement:
The activity covered under this Plan is the partial reuse of treated sewage effluent and biosolids produced at Chinderah Sewage Treatment Works by application to turf grown within the designated area of the Chinderah Sewage Treatment Works.
35. On 16 December 1998 the Council considered a report by its Director Engineering Services and resolved that:
1. Council proceeds with the establishment phase of the Turf Farm project on the site of the Kingscliff Sewage Treatment Works (STW) as outlined in the report.
...2. Council endorses the tea tree project subject to satisfactory commercial arrangements being resolved in the Confidential Agenda.
It is clear that the reference in the resolution to the Kingscliff Sewage Treatment Works is a reference to the Chinderah Sewerage Treatment Works.
An “activity” under Part 5 or “development” under Part 4?
36. Is the operation of s 110 made conditional upon the opinion or satisfaction of the determining authority with the consequence that such opinion is not examinable upon judicial review? This question may be put in another way. Is the fact of whether a proposal is an “ activity ” within the meaning of s 110 of the Act (and thus within the environmental assessment regime of Part 5) a jurisdictional provision? If it is, then the Court may inquire into and determine it as an objective fact for itself.
37. The question of whether something is jurisdictional depends on whether or not the final determination is one that is committed by the Act to the determining authority (in this case the Council) ( Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303 - 304; 71 ALJR 441 at 444). This issue depends in turn on the proper construction of the statute ( Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64 [37], 102 LGERA 52 at 60). As Spigelman CJ explained in Timbarra at 63 [28]:
It is not the law that the determination of whether or not something answers a statutory description cannot be a jurisdictional fact. (Sometimes called “collateral fact ” or “ condition precedent ”). Whether or not a particular finding of fact is jurisdictional in the requisite sense, depends upon the proper construction of the factual reference in the particular statutory formulation in which it appears.
38. Useful guidance on the question is found in the following statements in the judgment of Spigelman CJ in Timbarra .
Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. (at 64 [40])
Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts. (at 64 [41])
The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. (at 65 [44])
A factual reference in a statutory formulation relating to the instigation of a statutory decision-making process, is more likely, in my opinion, by reason of its extrinsic nature, to turn on an objective fact, than is a factual reference arising in, or in relation to, the conduct of the decision-making process itself. (at 65 [50])
One formulation of the relevant distinction is whether the fact referred to is “ a fact to be adjudicated upon in the course of the inquiry ” as distinct from an “ essential preliminary to the decision making process ”: Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443. (at 66 [52])
39. A jurisdictional provision may involve the exercise of judgment. Spigelman CJ said in Timbarra (at 72 [89]):
The fact that a matter of judgment of this character is involved does suggest that it is less likely to be intended by parliament to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ. Nevertheless, the proper construction of the statute may be that parliament did so intend. So, for example, the test of whether a report was “ substantially favourable ” to an employee was found to be an objective one: see Sutherland Shire Council v Finch (1970) 71 SR (NSW) 315 at 325-326; 91 WN (NSW) 396 at 405-407, per Mason JA.
40. The fact that the Council may have a role in deciding whether something is an “ activity ” within the meaning of s 110 is not determinative. As Spigelman CJ also said in Timbarra (at 71 [85]):
An administrative decision-maker often has to determine even jurisdictional facts, but does not do so conclusively. This has been recognised as long ago as Bunbury v Fuller (1853) 9 Ex 111 at 140; 156 ER 47 at 60.
41. Mr T F Robertson, for the applicant, submits that the turf farm in question in this case is not an “ activity ” within the meaning of s 110 because it is an act, matter or thing for which development consent under Part 4 is required, or alternatively, is an act, matter or thing which is prohibited under the LEP. He submits that s 110 is a threshold question, involving the asking of a question at the threshold of the inquiry, which makes it a jurisdictional provision.
42. In Mr Robertson’s submission, it would be unusual for Parliament to have identified a threshold question, yet not make the existence or non-existence of the fact jurisdictional, because that would otherwise mean that the law could be effectively ignored. The powers could be exercised according to a particular view of the facts which may change over time. Mr Robertson gave the example of a turf farm in the Shire of Tweed next to a sewerage treatment plant which could be subject to Part 5 of the Act, but in Ballina a turf farm next to a sewerage treatment plant could be subject to Part 4. It is conceivable that both decisions may, if it is non-jurisdictional, be equally open. There would then be the absurd situation where two different regulatory regimes applied to the same kind of project.
43. Mr Robertson submits that at least at the point where there is a choice between regulatory streams, the decision to select one over the other must be jurisdictional. Thus, in Timbarra , an important factor which led to the decision in that case was that the determination in question in turn determined the procedure to be followed.
44. Mr J J Webster, for the Council, submits that the question of whether an act, matter or thing is an “ activity ” within the meaning of s 110, is not jurisdictional. As I understand the submission, it is that Timbarra is distinguishable because the present case is one of classification and a question of fact, which the Court will not review if what the Council did was reasonably open to it. (He referred, in this context, to Londish v Knox Grammar School (1997) 97 LGERA 1 at 7.) I note that in Londish it was held that even where the question is one of classification, it is a question of law whether the primary facts can necessarily fit a statutory description. It seems to me, however, that Mr Webster’s submission over looks the legislative scheme in which s 110 appears and overlooks the textual and non-textual indicators to which I now refer.
45. It seems to me that there are textual indicators in the present case which suggest that s 110 is jurisdictional. These textual indicators may be stated as follows:
(a) there is no textual indication which suggests that a “ decision ” of any character arises under s 110;
(b) no question of “ opinion ” or “ satisfaction ” is mentioned in s 110. The determination is not expressed to involve the exercise of judgment;
(c) the definition of “ activity ” appears to be a purely objective one;
(e) the determination is to be resolved as an essential preliminary to the exercise or non-exercise of the powers and duties imposed by Part 5, rather than in the course of the exercise of those powers and duties. Thus, the statutory formulation of “ activity ” relates to the instigation of the statutory decision-making process, rather than the conduct of the decision-making process itself.(d) although s 110 excludes from the definition of “ activity ” any act, matter or thing for which development consent under Part 4 is required or has been obtained and any matter or thing that has been prohibited under an environmental planning instrument, the question whether any act, matter or thing is so excluded is entirely a matter of objective fact;
46. This case is thus quite different from Australian Heritage Commission v Mount Isa Mines Ltd , in which the High Court rejected a submission that the exercise of a power to enter a place on the Register of the National Estate under s 28 of the Australian Heritage Commission Act 1975 (Cth) was open to review as a jurisdictional fact. The power in that case was to be exercised when “ the Commissioner considers ” that a place should be so entered.
47. Other indicators in this case are non-textual. They appear to be (a) the inconvenience that may arise from classifying a statutory description as jurisdictional and (b) the purpose of the definition in the legislative scheme.
48. I do not regard the first of the non-textual indicators, though important, as being critical. The inconvenience is that any act, matter or thing which has not been the subject of environmental assessment made under Part 5 may have to undergo such assessment. Another kind of inconvenience is illustrated by the present case. An assessment of a project under Part 5 is susceptible to being set aside. As Spigelman CJ noted in Timbarra , statutes are construed on the basis that Parliament did not intend to cause inconvenience, although it can do so and often has.
49. The other non-contextual indicator is the purpose of the definition in the legislative scheme. The question whether or not an act, matter or thing is an “ activity ” within the meaning of s 110 determines which regulatory procedure applies thereto. Parts 4 and 5 of the Act are intended to be mutually exclusive. Part 5 of the Act requires a system of environmental assessment of acts, matters or things which are not the subject of development control elsewhere under the Act. A development coming within Part 4, either because it is something for which development consent under that Part is required, or which is “ exempt development” under that Part or which is prohibited under that Part, is not an activity under Part 5.
50. After careful consideration I am persuaded that the question of whether an act, matter or thing is an “ activity ” within the meaning of s 110, is jurisdictional. I accept Mr Robertson’s submissions. The textual indicators to which I have referred (paragraph 45 above) together with the matters to which Mr Robertson has referred (described in paragraphs 42-44 above) lead me to this view. The determination of whether an act, matter or thing is an “ activity ” in turn determines which regulatory procedure applies. I accept this as being a threshold question, not expressed to be dependent upon an opinion but purely a question of objective fact and a preliminary to the exercise of the decision-making powers and duties rather than a question arising in the conduct of the decision-making process itself. The absurd consequences which would follow in the event of a contrary conclusion (described in paragraph 42 above) confirm the view to which I have come.
51. The question of whether the proposal in the present case is an “ activity ” within the meaning of s 110 depends in turn on whether it is excluded therefrom by being an act, matter or thing for which development consent is required under Part 4 or by being an act, matter or thing which is prohibited by the LEP. I have described (in paragraphs 14-16 above) the relevant statutory provisions. Mr Webster relies upon SEPP 4, clause 11 (set out in paragraph 14 above) and upon the Model Provisions, clause 35 (set out in paragraphs 15 and 16 above) for a submission that development consent in this case is not required. In order to bring the activity within SEPP 4, clause 11 the activity must be a “ sewage treatment works ” or be part of a sewage treatment works. In order to bring the activity within clause 35 of the Model Provisions the activity must be a sewerage undertaking or be part of a sewerage undertaking, which answers one or more of the various descriptions in subparagraphs (a) to (f) of clause 2 of Schedule 1 (noted in paragraph 16 above).
52. Mr Webster relies upon the following facts in support of his submission that the turf farm is part of the sewerage treatment works: the approval by the Council is for an activity described in the EIS as “ Disposal of Effluent and Biosolids by Application to Turf ”, so that the purpose of the activity is not the sale of turf but the disposal of effluent and biosolids; the growing of grass is incidental to the disposal of effluent and biosolids on the land; the turf farm is dependent upon and subservient to the sewerage treatment works; there is no suggestion that the turf farm will continue if the sewerage treatment plant ceased operating; the disposal of effluent and biosolids on the turf is part of the treatment thereof, in the same way that further treatment occurs in the case of disposal into a river or salt water; the turf farm is on the same land as the sewerage treatment plant and is subordinate to the latter; the primary controls for pumping effluent on to the turf farm are part of the sewerage treatment plant site; and the primary product for the turf farm is effluent and biosolids of the sewerage treatment plant.
53. Mr Robertson relies upon the following facts in support of his contrary contention: in terms of area the dominant use of the site would be the turf farm rather than the sewerage treatment works; there will be times when, according to the operational plan, neither effluent nor biosolids will be applied to the turf farm, such as when nominated moisture levels, wind velocity or water table levels are exceeded; in order to produce the turf it will be necessary to add soil, seed, fertilizers, herbicides and pesticides as well as the effluent and biosolids; the turf farm is not part of the process of treating sewage, but will be using beneficially a by-product of sewage treatment which would otherwise would be merely disposed of; a sewerage treatment works is the treatment of sewage and not the use of by-products of such treatment; the mere application of such by-products is not part of a sewerage undertaking nor the process of treating sewage; a turf farm is not a public utility undertaking, neither is it an undertaking for the provision of sewerage services; the approval does not contain any conditions limiting the life of the turf farm to the life of the sewerage treatment works; the approval being of indefinite duration, there is no suggestion that the turf farm could not or would not continue to operate if the operation of the sewerage treatment works ceased; the fact that the turf farm will offset the cost of sewage disposal does not make it part of the activity of sewage disposal (cf Woollahra Municipal Council v Minister for the Environment (1991) 73 LGRA 379); and the application of effluent to the tea tree plantation does not make the tea tree plantation part of the sewerage treatment works, so that neither could the application of effluent and biosolids to turf make the turf farm part of the sewerage treatment works.
54. In my view the matters relied upon by Mr Robertson are compelling. To those matters may be added the following. It is irrelevant that the EIS describes the activity as “ Disposal of Effluent and Biosolids by Application to Turf ”. It is necessary to look at the particular activity itself rather than the nomenclature adopted by the proponent. When one looks at the details of the EIS one finds the objectives which I have noted (in paragraph 20 above): in particular, to provide “ a supplementary means of disposal of treated effluent .... through a re-use scheme as a primary objective ”; and to provide “ a means of disposal of treated biosolids from treatment plants within the shire as a secondary objective ” (the emphasis is mine). Under the heading “ Operational Plan ”, as noted (in paragraph 21 above), the EIS states: “ The activity can be considered in two parts. The first being the use of treated waste from the treatment plant while the second is the operation of turf harvesting ”. The EIS also states (as noted in paragraph 22 above) that effluent irrigation will be supplemented by fertilizers and applications of herbicide and pesticide; and that the project will have an indefinite life.
55. Moreover (as noted in paragraph 26 above) the firm of consultants which prepared the EIS has described the activity as: “ the disposal of TREATED effluent and biosolids ” and advised that the activity of obtaining the level of treatment is not the subject of this proposal. The Council’s own Kingscliff Wastewater Study refers to “ treated wastewater re-use ”. The management plan prepared by the Council’s consultant describes the activity as “ the partial re-use of treated sewage effluent and biosolids ... ” ( as noted in paragraph 34 above). All of these references describe, correctly in my view, the proposal. The turf farm will utilise treated effluent and treated biosolids being by-products of the sewerage treatment works. All this strongly suggests that the turf farm is not itself part of the sewerage treatment works.
56. It seems that the Environment Protection Authority does not regard a turf farm as part of a sewerage treatment plant. In its guidelines on how sewage should be treated and disposed of (noted in paragraph 31 above) the Authority defines a “ sewage treatment plant ” as follows: “ The processing facility that treats sewage to render it acceptable for discharge into the environment and which, as a result, produces biosolids, effluent and minor residuals ”. It follows that effluent and biosolids are the product of treatment and not part of the sewerage treatment works or a sewerage undertaking. This view is given added weight by the Authority’s draft guidelines for “ The Utilisation of Treated Effluent by Irrigation ” (noted in paragraph 32 above). Those guidelines state (inter alia): “ The EPA especially encourages the substitution of treated effluent for fresh/potable water wherever potable water is being used for non-potable purposes eg irrigation of crops and pastures ”. It seems clear to me that the substitution of treated effluent for fresh or potable water for the purpose of irrigation of crops and pastures does not make the growing of such crops and pastures part of a sewerage treatment works.
57. There are other examples of the application of treated wastes from sewerage treatment works. Reference has been made to the application of treated effluent to a tea tree plantation. It has not been suggested, neither could it be suggested, that the tea tree plantation is part of the sewerage treatment works or is ancillary thereto. As noted (at paragraph 29 above) treated effluent is used for irrigation for pasture grass; it is used by the Tweed Heads/Coolangatta Golf Club; it is used by a small crops farmer; and it is used in dry weather upon a dune system. In none of these cases is it suggested that they are part of a sewerage treatment works or are ancillary to a sewerage treatment works. I can take judicial notice of the fact that biosolids from other sewerage treatment plants are spread in State forests. It could not be suggested that such State forests are part of a sewerage treatment works or are ancillary to a sewerage treatment works. All of these cases involve the use of an end product of a sewerage treatment plant, but that does not make them part of the sewerage treatment plant or ancillary thereto.
58. For the reasons advanced by Mr Robertson (which I have noted in paragraph 53 above) and the additional reasons (which I have noted in paragraph 54-57) above the only conclusion that can be made is that the turf farm in the present case is not part of, neither is it ancillary to, the sewerage treatment works.
59. Mr Webster, however, submits in the alternative that the turf farm may be said to serve a dual purpose. That is to say, a further question arises if it can be said that there is a dual use, being both a use as a turf farm and a use being part of or ancillary to a sewerage treatment works. The former use is one which requires development consent, the latter use does not require development consent.
60. In C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270, the Court of Appeal recognised that, in a particular case, an activity can have a double character. Hope JA held (at 272) that if an activity fitted into more than one category and one of those categories is the use of land for a permitted purpose (in that case, “ agriculture ”) and the other for a prohibited purpose (in that case, an “ extractive industry ”), then consent could not be given to the application. Similarly, Reynolds JA held (at 276) that if the development was not only for the purpose of the permissible purpose (of agriculture) then it could not properly be the subject of consent.
61. In Egan v Hawkesbury City Council (1993) 79 LGERA 321, the Court of Appeal considered another case in which an activity could fall within two definitions of use, one of which was prohibited and the other permissible. Mahoney JA said (at 328):
As the submission accepts, the problem arises because the definitions are so drawn that some activities may fall within not merely one but two or more of them. The submission for the respondents would involve that, if an activity for which development approval is sought is within a definition of an activity which is proscribed, it would yet not be proscribed if it fell within a definition or class of activity not so proscribed. I do not think that that is how the local environmental plan was intended to operate. It intended to remove from use with council approval the kinds of activities falling within the definition as proscribed. The fact that a proscribed activity might fall within another definition was not intended to have the effect that it could be carried on, or carried on with consent.
Mahoney JA went on to hold (at 329) that the activities for which approval was sought, which included as they did a proscribed activity as well as a permissible activity (namely, “ industry ” as well as an “ extractive industry ”), were thus prohibited by the Local Environmental Plan. Cripps JA (at 333) expressly followed C B Investments Pty Ltd v Colo Shire Council in holding that once the activity is within the description of the proscribed use, it is prohibited whether or not it is permissible elsewhere.
62. In Friends of Pryor Park Inc v Ryde Council (25 September 1995, unreported) Bignold J distinguished C B Investments on the particular facts of that case. Bignold J applied what might be described as a genus and species test: if a genus is a permissible use then one of its species is also a permissible use. Thus, in that case, the permissible use of the genus “ community facility ” included a species of that genus, namely a “ child care centre ”. This case is of no assistance to the Council here, because a “ turf farm ” could not be regarded as a species of the genus “ sewerage treatment works ”. They are separate activities which are not necessarily dependent upon each other. One can readily exist without the other.
63. In Pilley v Maitland City Council (Pearlman J, 21 October 1996, unreported) the Chief Judge had to consider an activity which had the dual categorisation of “ agriculture ”, which was permissible without consent and an “ animal establishment ” which was permissible only with development consent. Her Honour held that the terms of the zoning table meant that since the proposed development fell within the definition of “ agriculture ” then it fell within item 3 of the zoning table, being development allowed without development consent. The fact that the proposed development also fell within a defined term which did not appear under item 3 or 5, namely “ animal establishment ” made no difference because it was not development “ other than development included in items 3 or 5 ” and thus was not “ development allowed only with development consent ”.
64. Again, this case is of no assistance to the Council, because the only development under the zoning table in zone No 4(a) which is permissible under item 2 without development consent is “ home occupations ”. Turf farms (and extractive industries) come within item 3, namely development permissible only with development consent, each being a “ purpose other than a purpose included in item 2 or 4 ”. Sewerage treatment works are not included under items 2 or 4. Sewerage treatment works are also, under the zoning table, within item 3 and thus permissible only with development consent. It is only clause 11 of SEPP 4 and/or clause 35 of the Model Provisions which exempt a sewerage treatment works from the need to obtain development consent. The reasons which led to Pearlman J’s decision in Pilley , based upon a construction of the relevant LEP, do not apply here. If it could be said that there is a dual use in the present case (and in my view it could not) then the use is permissible without consent (a sewerage treatment works) is neither within item 2 of the zoning table (permissible without consent) or item 4 of the zoning table (prohibited development of the zoning table): the only use listed under item 2 of the zoning tables remains “home occupations”.
65. Neither can it be said that the turf farm in the present case is deprived of being an independent use notwithstanding its association with the sewerage treatment works. In Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 44, Meagher JA (with whom Samuels AP and Clarke JA agreed) said (at 409-410):
Notwithstanding the principles laid down in Foodbarn , it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is “ ancillary to” , or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses (of which the decision of this Court in Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206 is an example) illustrate the point: they show that a “ convenience store ” and a petrol station are two independent uses, although the former is clearly ancillary to the latter.
So, too, in the present case, the use of the land as a turf farm is not deprived of the quality of being an independent use merely because it may be ancillary to, or related to, or interdependent with, or associated with, another use.
66. I conclude from the above that the activity is properly categorised as a turf farm and it cannot be regarded as being a sewage treatment works or as part of a sewage treatment work within clause 11 of SEPP 4. For the same reasons the activity cannot be categorised as a sewerage undertaking or as part of a sewerage undertaking within the meaning of clause 2 of Schedule 1 of the Model Provisions, to which clause 35 of the Model Provisions refer. It is development which is excluded from the definition of “ activity ” in s 110 of the Act, being an act, matter or thing for which development consent is required under Part 4.
67. In view of my finding that s 110 is a jurisdictional provision and that the activity is a turf farm requiring development consent under Part 4 of the Act, there is no need to consider the further question that was in issue, namely: if s 110 is not a jurisdictional provision, whether the applicant is nevertheless entitled to the relief which it seeks. The issue having been canvassed, I should nevertheless say something about it.
68. Mr Webster submits, in effect, that the Council’s adoption of the regulatory procedure under Part 5 of the Act, rather than under Part 4, depended in turn on its acceptance that the activity in question was not a turf farm but was part of the sewerage treatment works. That, he submits, is a question of fact, with which the Court cannot interfere. In support of his submission Mr Webster relies upon Leichhardt Municipal Council v Maritime Services Board of New South Wales (1985) 57 LGRA 169, Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461, Bentham v Kiama Municipal Council (1986) 59 LGRA 94, Save Blue Lagoon Action Group Inc v Kelvest Pty Ltd (1993) 8 LGRA 144, Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333, Blair v Blue Mountains City Council (1997) 93 LGERA 189 and Londish v Knox Grammar School.
69. Each of the authorities relied upon by Mr Webster propound basically the same well-known principle: that if it was reasonably open to the Council to conclude that the turf farm was part of the sewerage treatment works, the Court in judicial review proceedings could not substitute its opinion for that of the Council. Thus, in Leichhardt Municipal Council v Maritime Services Board of New South Wales , Cripps J (at 178) adopted what was said by Gibbs J in Parramatta City Council v Pestell (1972) 128 CLR 305, 27 LGRA 72: “ A court has no power to override the Council’s opinion on such a matter simply because it considers it to be wrong ”. Gibbs J went on to say that “A n opinion may nevertheless not be valid if it is so unreasonable that no reasonable council could have formed it: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 228-229 and Bankstown Municipal Council v Fripp (1919) 26 CLR 403. ” As I have said, the other authorities relied upon by Mr Webster, mentioned above, contain statements of the same principle.
70. In my view, even applying this test the applicant succeeds. The facts which have persuaded me to the view that the turf farm is not part of the sewerage treatment works which I have described above (in paragraphs 54-57) apply equally here. In my view no other conclusion is reasonably open. It would be absurd to suggest that the other project which is to receive treated effluent from the sewerage treatment plant, namely the tea tree plantation, is part of the sewerage treatment works. It would be absurd to suggest that the use of treated effluent on crops makes the growing of crops part of the sewerage treatment works. It would be absurd to suggest that the Tweed Heads/Coolangatta Golf Club, a significant user of treated effluent, is part of the sewerage treatment works. It would be absurd to suggest that State forests in which biosolids are spread are part of a sewerage treatment works. It would be equally absurd to suggest that this turf farm is part of the sewerage treatment works. It is true that the turf farm is to use treated products of the sewerage treatment works, but so, too, do the other activities to which I have referred. These and the other matters which I have described all lead to the conclusion that it was not reasonably open to the Council to conclude that the turf farm was part of the sewerage treatment works.
Conclusion
71. The applicant has succeeded in demonstrating that the proposed turf farm is not part of the sewage treatment works and thus does not come within clause 11 of SEPP 4 nor that it is part of a sewerage undertaking referred to in clause 35 of the Model Provisions. It follows that the proposed turf farm is not an “ activity ” to which Part 5 of the Act applies and is subject, instead, to Part 4 of the Act.
72. As to the form of the orders to be made I think it is appropriate in this case to direct the applicant to bring in short minutes of orders to give effect to this judgment.
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