Hunt v Blacktown City Council

[1999] NSWLEC 113

Land and Environment Court

of New South Wales

CITATION:

Hunt v Blacktown City Council [1999] NSWLEC 113

PARTIES

APPLICANT
Hunt

RESPONDENT
Blacktown City Council

NUMBER:

10427 of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Development :- Existing use - categorisation of poultry farm as 'agriculture' - rather than 'rural industry' - 'prohibited use' is one which is so nominated in the planning instrument and not one which is permissible with consent but may be prevented because of incompatibility with objectives of the plan.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 106, s 107

DATES OF HEARING:

10/18/1999; 10/19/1999

DATE OF JUDGMENT DELIVERY:

11/12/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr W Davison SC

SOLICITORS
Pike Pike and Fenwick

RESPONDENT
Mr J Ayling (Barrister)

SOLICITORS
Taylor Kelso

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10427 of 1999
CORAM: Cowdroy J
DECISION DATE: 12/11/99

Hunt

Applicant

v

Blacktown City Council

Respondent

JUDGMENT

The Facts

1. A point of law has arisen concerning the status of the lands the subject of this application. The Court is required to consider whether the land has acquired the status of an ‘existing use’, as defined in s 106 of the Environmental Planning and Assessment Act 1979 (“the Act”). During the hearing the respondent (“the council”), conceded that the ‘use’ relied upon was lawful as at the commencement date of operation of the relevant planning instrument. Therefore much of the historical detail is now otiose but it is incorporated as a useful history.

2. In or about December 1956, Guy Ives Andre Gely and Collette Suzanne Gely, purchased Lot 60 in DP 8050 being farmlands adjacent to Pye Road, Blacktown. Upon such lands they commenced to conduct the business of a poultry farm, known as Chanticlair Farm. In April 1957 a brooder house was constructed immediately to the south of the dwelling-house which was to produce fertilised breeding eggs for sale to hatcheries. In December 1957 three sections of saw-tooth sheds were constructed and further sections were added in 1958 and April 1959 (this building is hereafter referred to as Shed No 5). Later, in about June 1960 a shed known as Shed No 2 was built, as was a feed-mill and second packing shed in 1961. A dam and waterhole at the north-western corner of the site adjoining Lalor Road was installed and during 1962 a shed known as Shed No 3 was constructed. Water was piped from the dam and used for the purpose of cooling the chicken sheds on the aforesaid Lot 60. In approximately 1963 Mr and Mrs Gely purchased Lot 61 in DP 8050 which now constitutes the eastern half of their farm.

3. During 1956 Shed No 5 was expanded pursuant to the consent of the council dated the 22 July 1956 and numbered 871. On 25 July 1956 the council by consent no 8050 granted consent for the construction of poultry sheds which became known as Sheds No 6 and No 8. Thereafter on 28 May 1981 by consent no 145/20/3602 dated 28 May 1981 the council granted consent for extensions to existing sheds and one new shed. Lastly, on 14 June 1983 by consent no 2429 the council granted consent for the erection of a packing shed for the purpose of egg grading.

4. In December 1987 a development application was lodged to renovate and alter existing sheds and to construct new sheds. The report of a council officer dated 25 January 1988 records that the consent requested related to the construction of three new sheds to replace three existing sheds, extension to an existing shed and the construction of two new additional sheds. The report referred to the fact that the poultry farm had existing use rights since it was a lawful activity under Interim Development Order No 133 (“IDO 133”). The council however at a meeting on 10 February 1998 refused consent.

5. On 21 December 1993 a development application was lodged for the relocation and replacement of an existing storage shed. In support, Mr Gely stated in a letter dated 3 November 1983 that a poultry shed currently used for storage of equipment and spare parts was to be relocated adjacent to an egg packing shed and to be used primarily to store, handle and pack eggs and to store relevant machinery. A file note dated 21 December 1993 by a council officer recorded that the existing poultry farm operated under ‘existing use’ rights and that the poultry shed replacement would permit the introduction of new technology for egg handling and packaging forming part of the overall poultry farm development. The council granted consent no 12023 on 21 December 1993.

6. On 8 November 1983 a development application was lodged to landscape and create screen earth mounds to screen the existing poultry farm development. Consent no 12074 was granted on 14 January 1994.

7. On 25 October 1995 the council granted an application made pursuant to s 102 of the the Act for the relocation of a shed and minor variation of its dimensions.

8. The enterprise of Chanticlair Farm had been conducted in partnership by Mr and Mrs Gely until the early 1970’s. The business then incorporated and was conducted in the name of Obol Pty Ltd trading as Chanticlair. Mr and Mrs Gely moved overseas to live in France between 1976 and 1977 and thereafter the business was conducted by their son Mr Phillip Gely. Mr Gely Senior continued to retain an active interest in the business.

The Issues

9. Against these facts two issues arise namely, categorisation of the nature of the use and whether such use would give rise to an ‘existing use’ within the meaning of that term as contained in s 106 of the Act.

Historical zoning background of the lands

10. The original restrictions upon the subject lands were imposed by virtue of the Local Government (Amendment) Act 1951 which introduced the County of Cumberland Planning Scheme which directed to buildings rather than land use. Buildings could be constructed for the purposes of inter alia, agriculture and rural industries only with consent of the responsible authority. The term agriculture was defined as follows, ‘ Agriculture has the meaning ascribed to it in s 514A of the Act’, being the Local Government Act 1919. Such definition provides:-

“Agriculture” and “Cultivation” include horticulture and the use of land for any purpose or husbandry, including the keeping or breeding of livestock, poultry, or bees, and the growing of fruit, vegetables, and the like, and “agricultural” and “cultivate” have a corresponding meaning.

11. By Government Gazette dated 21 October 1977 IDO 133 was published to control the development of the non-urban lands in the municipality of Blacktown. In respect of the non-urban “A” zoned land, agriculture other than pig keeping or poultry farming establishments and forestry could be carried on without the consent of council. Poultry farming establishments could be carried out only with the consent of the council. Rural Industries also required consent and was defined in IDO 133 as follows:-

“rural industry” means handling, treating, processing or packing primary products produced in the locality and includes the servicing in a workshops of plant or equipment used for agricultural purposes in the locality;

12. On 3 February 1984 the Blacktown Local Environmental Plan No 64 was gazetted. In respect of land zoned residential (H) (which relates to the subject land) various activities were prohibited including industries listed in schedules 2, 3, 4 and 5 to such plan. Schedule 3 prohibited poultry farms as well as rural industries. The definition of ‘agriculture’ as contained in the Environment Planning Model Definitions 1980 was adopted. It adopts the same definition as that contained in s 514A of the Local Government Act.

13. In 1988 the Blacktown Local Environmental Plan superseded the 1984 Plan. It was in turn amended by New South Wales Government Gazette No 36 published on 11 April 1997. The 1997 Amendment made a significant change by rendering agriculture (including keeping of poultry) a use permissible with consent, thereby removing it from the category of ‘prohibited use’. Rural Industries remained prohibited. The definition of ‘Agriculture’ was replaced by the following:-

“agriculture” includes the growing of vegetables, flowers and ornamental plants, orcharding and the like or the use of land for any purpose of husbandry (including the keeping and breeding of livestock, poultry or bees);

14. The current relevant zoning instrument is the Blacktown Local Environmental Plan 1988 as amended (‘the amended 1988 LEP’). Pursuant thereto the land is zoned no 2(a)(‘Residential “A” Zone’). Within such zone development consent is not required for dwelling houses. Certain other uses maybe carried out only with development consent and other uses, including those contained in Schedule 1 are prohibited. The objectives of the 2(a) (‘Residential “A” Zone’) under the amended 1988 LEP are as follows:-

1. Objectives of zone
The objectives are-
(a) to make general provision to set aside land to be used for the purpose of housing and associated facilities;
(b) to identify existing residential areas of a predominantly single dwelling character, and to maintain that character by prohibiting residential flat buildings;
(c) to enable sensitive infill development of other housing types;
(d) to enable redevelopment for medium density housing forms, including townhouses, villas, cluster housing, semi-detached housing and the like, where such development does not interfere with the amenity of surrounding residential areas;
(e) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours; and
(f) to allow within the zone a range of non-residential uses which -
(i) are capable of visual integration with the surrounding environment
(ii) either serve the needs of the surrounding population or the needs of the City of Blacktown without conflicting with the basic intent of the zone; and
(iii) do not place demands on public services beyond the level reasonably required for residential use.

2. Without development consent
Dwelling-houses

3. Only with development consent
Any purpose other than a purpose included in Item 2 or 4 of the matter relating to this zone.

4. Prohibited
Residential flat buildings; purposes listed in Schedule 1.

Schedule 1 includes ‘Rural Industries’ as a prohibited use.

15. Clause 9 (3) of the amended 1988 LEP relating to zone objective and development control provides as follows:-

9 (3) Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one of more of the objectives of the plan and one or more of the objectives of the zones within which the development is proposed to be carried out.

16. The LEP and amended LEP adopt the Environment Planning and Assessment Model Provisions 1980 definition of “Rural Industries”, which is:-

“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.

Categorisation of Use

17. The applicant asserts that it is conducting a rural industry. It relies upon the fact that from 1969 to 1998 the farm was used to produce fertile eggs for sale to hatcheries. Following the acquisition of Lot 61 and the construction of additional sheds, the farm was not only used for the production of eggs on site which were processed and packed for distribution but in addition eggs were brought to the premises from off-site for packaging and distribution. With the introduction of legislation requiring licences for birds, and the requirement that all eggs produced be disposed of through the Egg Marketing Board in the period 1974-1998, the business obtained a permit as ‘Producer/Packer’ which authorised it to grade, pack and distribute eggs on-site and to purchase, process, grade and pack eggs produced off the site. The business also obtained a ‘Producer/Agency’ permit which authorised the sale of eggs direct to the public. Accordingly since approximately 1968 the business has graded, packed and distributed eggs which have been produced on and off the site and has purchased machinery for this purpose. The applicant relies upon Egan and Ors v Hawkesbury City Council and Anor (1993) 79 LGERA 321 to justify a finding that egg processing is a different industry from egg production. It claims that its operations upon the lands is that of a “Rural Industry” as defined and accordingly it became a prohibited use under the 1984 Blacktown Local Environmental Plan and continues to be so.

18. In the various applications which have been made to the council for approval to build sheds on the property, they have been referred to as ‘poultry sheds’ for use in connection with an existing poultry establishment. Application no 12023 refers to the demolition of existing sheds and ‘ redevelopment of a new storage shed for the purposes of egg handling and packaging as part of the existing poultry farm operation’. The applicant has never suggested that the activity concerning the packaging and processing of eggs was separate from the activity of poultry farming.

19. The sorting and packing of eggs both produced on the site and off the site comprised part of the total enterprise. It is immaterial when determining the classification of use that eggs produced on another farm pursuant to a joint venture agreement were brought to the farm for packaging, since such production arises out of poultry farming. No consent has ever been sought in respect of the alleged activity of packaging and processing as comprising a separate rural industry to the poultry farming operations. In the circumstances the whole activities carried out on Chanticlair Farm conducted on Lot 60 and on Lot 61 is to be categorised as a poultry farm as defined in the amended 1988 LEP.

Existing Use

20. Section 106 of the Act defines existing use as follows:-

existing use means
(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and
(b) the use of a building, work or land:
(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and
(ii) not relevant.

Section 107(1) of the Act provides:-

107 (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

21. The poultry farming activities have been conducted lawfully. The question to be determined is whether they are now ‘prohibited’ under the amended LEP. If so the definition of ‘existing use’ is satisfied. In North Sydney Municipal Council v Boyts Radio and Electrical Pty Limited (1989) 16 NSWLR 50 the New South Wales Court of Appeal (at 59) set out the principles to apply when considering the claim of an ‘existing use’. An existing use in the present context is one which has been conducted for a lawful purpose before the implementation of the current planning instrument which is prohibited by such instrument.

22. Properly categorised the activity conducted on the premises known as Chanticlair Farm is ‘agriculture’ as defined in the amended 1988 LEP. Such definition specifically refers to the keeping of poultry being the very activity which is conducted at the farm. ‘Agriculture’ is a use which is not included in the list of prohibited uses set out in Schedule 1 to the instrument. Whilst the operation of packing, sorting and grading of eggs produced on the farm and brought in from other farms may take place, this activity is the end product of the principal activity. Accordingly, the operations do not constitute a “Rural Industry” as defined.

23. The applicant asserts that the prohibition of such a use can arise not only because the use is included in the Schedule to the amended 1988 LEP but also because it might otherwise be incompatible with the objectives of the 2(a) (Residential “A” Zone) in the instrument. It says that the use of a poultry farm is not only inconsistent with such objectives but also inconsistent with the objectives of the instrument as set in cl 2(2) of Part 1 of the instrument. The applicant relies upon the decision of the New South Wales Court of Appeal in Vaniga v South Sydney Council (1989) 74 LGRA 86 and the decision of Bignold J in Russo v Kogarah (1985) 86 LGRA 300.

24. A poultry farm being ‘agriculture’ is a use which is permissible in the Residential 2(a) Zone with the consent of council. Vaniga was not a case which dealt with the question of ‘existing use’ rights and that decision must be confined to the facts of the matter before it. It found that a provision of the Sydney Local Environmental Plan No 61 prohibited a particular development because of non-compliance with the floor space ratios. In Russo , Bignold J relied upon Vaniga as authority for the proposition that provisions in a planning instrument which qualify a council’s power to grant a development consent can constitute a prohibition sufficient to prohibit an existing use within the meaning of s 106 of the Act.

25. There is to my mind a clear distinction between a use which is prohibited because it is nominated as such in a planning instrument, compared to a use which although is not listed as ‘prohibited’ is one for which council upon a consideration of the various requirements of s 79C of the Act would not grant consent on merit. The former is rendered a ‘prohibited’ use by virtue of the relevant environmental planning instrument. The latter is not such use because it is not the provisions of cl 106(a) which prohibit such use. Rather that use is prevented because the consent of the appropriate authority (in this case the council) is denied. This does not however render it a ‘prohibited’ use as defined: see Woolworths Limited v Dubbo City Council (1997) 99 LGRA 334.

26. The applicant says that the use of a poultry farm in a residential zone is inconsistent with the objectives of the plan and of one or more objectives of the zone and therefore the council cannot give approval because of cl 9(3). It says therefore that the use is prohibited in this sense. The identical clause was included in the relevant instrument referred to in Woolworths .

27. Again the flaw in the submission lies in the fact that it could not be said that the use is prohibited without council making a determination of the consistency or otherwise of the development proposal. The decision not to grant consent arises only after the council is satisfied that the proposed development is inconsistent with the objectives of cl 9(3) of the instrument. There is no ‘prohibition’ at the outset. Without such decision it could not be said that the development is ‘prohibited’ as being antipathetic to the objectives (see Coffs Harbour Environment Centre Inc v Coffs Harbour City Council and Anor (1991) 74 LGERA 185 (CA)). A contrary result would subvert the basis of zonings which form the foundation of most environmental planning instruments.

Conclusion

28. In summary, the findings of the Court are as follows:-

(a) The proper categorisation of the activity conducted on the subject land prior to the implementation of the amended 1988 LEP is that of a poultry farm. As such its use is that of ‘agriculture’ as defined in the said instrument and not ‘Rural Industry’;
(b) It is not a use which is incorporated in the schedule of prohibited uses to the said instrument;
(c) A prohibited use is one which is defined as such in the relevant zoning instrument, and not one which may be prevented from implementation following a merit assessment pursuant to 79C of the Act;
(d) Accordingly the use of a poultry farm is not one which attracts the benefit of a ‘prohibited use’ for the purpose of s 106 of the Act;

Findings

29. The Court therefore:-

(1) Finds that the use of the premises does not qualify for the benefit of an ‘existing use’ as defined in s 106 of the Act.

(2) Orders the exhibits be returned.