Ma Projects Pty Ltd v Wagga Wagga City Council

[2010] NSWLEC 1212

Land and Environment Court

of New South Wales

CITATION:	MA Projects Pty Ltd & Ors v Wagga Wagga City Council [2010] NSWLEC 1212
PARTIES:	APPLICANTS MA Projects Pty Ltd Makybe Pty Ltd DMS Equipment Sales Pty Ltd and Woorigal Pty Ltd (trading as RAMP Property Developments) RESPONDENT Wagga Wagga City Council
FILE NUMBER(S):	10114 of 2010
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Act Model Provisions 1980 State Environmental Planning Policy No 30 - Intensive Agriculture Wagga Wagga Rural Local Environmental Plan 1991 Wagga Wagga Local Environmental Plan 1985 Wagga Wagga Local Environmental Plan 2010 Wagga Wagga Development Control Plan 2005
CASES CITED:	Mc Master v Wagga Wagga City Council [2009] NSWLEC 1237 Shire of Perth v O'Keefe (1963) 110 CLR 528 Hopkins v Tweed Shire Council (2001) 113 LGERA 406 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
DATES OF HEARING:	2, 3 June, 4 August 2010
DATE OF JUDGMENT:	13 August 2010
LEGAL REPRESENTATIVES:	APPLICANTS Ms S Duggan, barrister Instructed by Gain Kent McRae solicitors RESPONDENT Mr S Simington, solicitor Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

13 August 2010

10114 of 2010 MA Projects Pty Ltd, Makybe Pty Ltd, DMS Equipment Sales Pty Ltd and Woorigal Pty Ltd (trading as RAMP Property Developments) v Wagga Wagga City Council

JUDGMENT

1 Commissioner: This is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the Wagga Wagga City Council (the Council) of consent to development application DA08/0489 for the erection of premises for use as a heavy machinery servicing workshop and sales of machinery at Lot 21 DP 1122318, 1 Tasman Road Gumly Gumly (the site).

2 The site is approximately 5 km east of Wagga Wagga Central Business District on the south east corner of the Sturt Highway and Tasman Road. The site is a rectangular allotment, 2.87ha in area, and is currently vacant. The site is flat with minimal vegetation other than grasses, and at the time of the site view was being used to graze a horse.

3 To the east of the site along the Sturt Highway is a motel, and further to the east is a row of 16 detached houses. Approximately 700 m to the east of the site, on the corner of Bakers Lane and the Sturt Highway, are premises known as the “Drive-In Leisure Centre” which formerly housed a drive-in theatre, and which houses a motor cycle and boat showroom and service centre, a retail plant nursery, a fishing tackle store and a café. Land immediately to the south of the site is used for agricultural purposes, and a steel cleaning operation. Land to the north of the site on the other side of the Sturt Highway is, with the exception of a shed display and sales business to the north east of the site, used for agricultural purposes, most commonly grazing.

The Proposal

4 The development application described the development as being “Rural Industry – heavy machinery servicing workshop and sales”. The proposal is for the erection of a large industrial building 66.5m x 28.5m x 8.25m with a floor area of 1879sqm. The proposed building has five service bays, an office, and a parts warehouse. Located on the south east corner of the site is a wash bay (15.86m x 14.82m x 4.0/6.0m), which includes a treatment plant for wash water runoff. The proposal includes an area facing the Sturt Highway frontage intended to be used for the display of machinery and equipment. The Statement of Environmental Effects (SEE) stated that 35 parking spaces were included (6 visitors, 29 staff), and stated:

Activities on the site will include servicing in the 5 service bays, warehousing and sale of spare parts, administration and the sale of plant and machinery both new and used.

5 The SEE stated under Operational Details:

The operations on the site will involve servicing and repairs of heavy plant and machinery used in primary production. This will require the storage of plant and machinery both prior to carrying out repairs and after the repairs have been completed, awaiting transportation.
...
The warehousing of spare parts, together with their sales will be conducted from the building.
Administration of the business will be carried out in the office area.
New and used plant and equipment will be sold from the site.
…

6 The proposal includes two vehicle entry points off Tasman Road for motor vehicles and trucks, adjacent to the southern boundary of the site. The SEE states that traffic entering and leaving the site would consist of light vehicles, being cars and utilities (75%), highway trucks (19%) and heavy floats (6%).

7 The Traffic Impact Statement accompanying the development application estimated the vehicle movements generated by the proposed development to be a total of 135 one way trips per day, made up as follows:

Workshop and service
There are 5 workshop bays. Assume 3 servicemen per bay. Trucks and machinery will be delivered to the workshop for service and also servicemen will travel to do services in the field. Supplies will be delivered to the workshop eg equipment and lubricants.
Allow throughout a typical day (one way) 45 trips
Spare parts
Allow for employee trips to work. Customers to facility. Supplies delivery. Spares dispatch to customers.
Allow throughout a typical day (one way) 45 trips
Sales
Allow for employee movements. Inbound and outbound machinery movements.
Allow throughout a typical day (one way) 30 trips
Managerial movements
Employee movements. Office supplies and service.
Allow throughout a typical day (one way) 15 trips

8 The Notice of Determination stated that the reason for refusal of the application was that the proposed land use was prohibited under the Rural LEP.

9 In support of a request for review of that decision under s82A of the Act the applicant’s solicitor provided a submission dated 22 September 2009, which referred to the decision of Moore SC in McMaster v Wagga Wagga City Council [2009] NSWLEC 1237 on the definition of “motor vehicle”, and stated (at p3):

The type of self propelled motorized vehicles which are proposed to be sold from the site include (but are not limited to):
(i) tractors;
(ii) articulated trucks;
(iii) excavators;
(iv) loaders;
(v) graders; and
(vi) scrapers etc etc.
Attached and marked Annexure “B” is a list (including diagrams) of the type of motorized vehicles which will be sold and serviced from the subject property.

10 The attached Annexure shows 24 different types of equipment.

Planning controls

Background

11 The development application was lodged on 7 July 2008. At that time the applicable local environmental plan was the Wagga Wagga Rural Local Environmental Plan 1991 (the Rural LEP), under which the land was zoned No. 1 (Rural). The boundary of the land covered by the Rural LEP lies on the western boundary of the site. Land to the west, on the other side of Tasman Road, was covered by the provisions of the Wagga Wagga Local Environmental Plan 1985.

12 After the development application was lodged, the Department of Planning provided a certificate under s65 of the Act to enable public exhibition of the Draft Wagga Wagga Local Environmental Plan 2008 (the Draft LEP). The Draft LEP was on public exhibition until 1 June 2009. The development application the subject of these proceedings was refused on or about 9 March 2009.

13 On 28 August 2009 the applicant lodged a request for a review under s82A of the Act. That review confirmed the refusal of consent, and the applicant commenced these proceedings on 22 February 2010.

14 On or about 23 February 2010 the Council provided to the Director General of the Department of Planning the documentation required under sections 68 and 69 of the Act for the Draft LEP.

15 The Wagga Wagga Local Environmental Plan 2010 (the 2010 LEP) was made and came into effect on 16 July 2010. The site, and the land adjoining the site to the south and east and on the other side of the Sturt Highway, is zoned RU1 Primary Production under the 2010 LEP. The land to the west of the site on the other side of Tasman Road, which was formerly subject to the Wagga Wagga Local Environmental Plan 1985, is zoned IN1 General Industrial.

The Wagga Wagga Rural Local Environmental Plan 1991

16 The aims and objectives of the Rural LEP are provided in cl2. The objectives of the Zone No 1 (Rural) are:

1 Objectives of zone
The objective of this zone is to promote the proper management and utilisation of resources by any one or more of the following:
(a) protecting, enhancing and conserving:
(i) agricultural land in a manner which sustains its efficient and effective agricultural production potential,
(ii) soil stability by controlling and locating development in accordance with soil capability,
(iii) forests of existing and potential commercial value for timber production,
(iv) valuable deposits of minerals and extracted materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits,
(v) trees and other vegetation in environmentally sensitive localities where the conservation of the vegetation is significant to scenic amenity or natural wildlife habitat or is likely to control land degradation,
(vi) water resources for use in the public interest,
(vii) localities of significance for nature conservation, including localities with rare plants, wetlands and significant wildlife habitat, and
(viii) places and buildings of archaeological or heritage significance, including Aboriginal relics and places,
(b) preventing the unjustified development of prime crop and pasture land for purposes other than agriculture,
(c) ensuring that any allotment created for intensive agricultural pursuits is potentially and physically capable, on its own, of sustaining a range of such pursuits or other agricultural purposes as a commercial agricultural operation suitable to the locality,
(d) facilitating farm adjustments,
(e) minimising the cost to the community of:
(i) fragmented and isolated development of rural land, and
(ii) providing extending and maintaining public amenities and services, and
(f) providing land for future urban development, for future rural residential development and for future development for other non-agricultural purposes, in accordance with the need for that development,
(g) providing for a range of rural living styles in appropriate locations within the area to which the plan applies, and
(h) encouraging the establishment of rural industries within the area to which the plan applies.

17 The only development permissible without development consent is agriculture (other than ancillary dwellings and intensive livestock keeping establishments), and forestry (other than ancillary dwellings and pine plantations). Prohibited in the Zone No 1 (Rural) are residential flat buildings and shops (other than general stores not exceeding 100sqm in gross floor area). All other development is permissible with development consent.

18 Clause 9(3) of the Rural LEP provides:

(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

19 Clause 10 of the Rural LEP contains general considerations for development within the rural zone:

(1) The Council shall not consent to an application to carry out development on land within Zone No 1 unless it has taken into consideration, if relevant, the effect of the carrying out of that development on:
(a) the present use of the land, the potential use of the land for the purposes of agriculture and the potential of any land which is prime crop and pasture land for sustained agricultural production,
(b) vegetation, timber production, land capability (including soil resources and soil stability), water resources (including the quality and stability of watercourses and groundwater storage and riparian rights),
(c) the future extraction of known valuable deposits of minerals, coal, petroleum, sand, gravel or other extractive materials and localities considered to be prospective for those materials,
(d) the protection of localities of significance for nature conservation or higher scenic or recreational value, and places and buildings of archaeological or heritage significance, including Aboriginal relics and places,
(e) the cost of providing, extending and maintaining public amenities and services to the development, and
(f) future expansion of settlements in the locality.
(2) As well as the matters referred to in subclause (1), the Council shall take into consideration the relationship of the development to develop and on adjoining land or on other land in the locality.

20 Clause 6 of the Rural LEP adopts certain parts of the Environmental Planning and Assessment Model Provisions 1984 (the Model Provisions) for the purposes of the Rural LEP. The following definitions in clause 4 are relevant:

Car repair station means a building or place used for the purpose of carrying out repairs to motor vehicles or agricultural machinery not being:
(a) body building,
(b) panel beating which involves dismantling, or
(c) spray painting other than of a touching-up character.
Motor showroom means a building or place used for the display or sale of motor vehicles, caravans or boats, whether or not motor vehicle accessories, caravan accessories or boat accessories are sold and displayed therein or thereon.
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.
Service station means a building or place used to the fuelling of motor vehicles involving the sale by retail of petrol, oil and other petroleum products whether or not the building or place is also used for one or more of the following purposes:
(a) the sale by retail of spare parts and accessories for motor vehicles,
(b) washing and greasing of motor vehicles,
(c) installation of accessories,
(d) preparing and servicing of motor vehicles involving the use of hand tools (other than repairing and servicing which involves top overhaul of motors, body building, panel beating, spray painting, or suspension, transmission or chassis restoration).
Shop means a building or place used to the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but does not include building or place elsewhere specifically defined in this clause, a building or place useful purpose elsewhere specifically defined in this clause.

Wagga Wagga Local Environmental Plan 2010

21 The Land Use Table for the RU1 zone provides:

Zone RU1 Primary Production

1 Objectives of zone

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within the zone and land uses within adjoining zones.

• To foster strong, sustainable rural community lifestyles.

• To maintain the rural landscape character of the land.

• To allow tourist and visitor accommodation only where it is in association with agricultural activities.

2 Permitted without consent

Environmental protection works; Extensive agriculture; Home businesses; Home occupations; Roads

3 Permitted with consent

Bed and breakfast accommodation; Cellar door premises; Dual occupancies; Dwelling houses; Extractive industries; Farm buildings; Farm stay accommodation; Home industries; Markets; Mining; Roadside stalls; Rural workers’ dwellings; Secondary dwellings; Any other development not specified in item 2 or 4

4 Prohibited

Airports; Amusement centres; Bulky goods premises; Business premises; Caravan parks; Crematoria; Entertainment facilities; Exhibition homes; Exhibition villages; Freight transport facilities; Function centres; Health services facilities; Home occupations (sex services); Industries; Landscape and garden supplies; Mortuaries; Office premises; Passenger transport facilities; Recreation facilities (indoor); Registered clubs; Residential accommodation; Restricted premises; Retail premises; Sex services premises; Storage premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Vehicle sales or hire premises; Warehouse or distribution centres; Wholesale supplies

22 Clause 2.3(2) provides:

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

23 Clause 2.3(3) provides:

(3) In the Land Use Table at the end of this Part:
(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and
(b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

24 Clause 1.8A is a savings provision:

1.8A Savings provision relating to pending development approvals

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

25 The definitions in the 2010 LEP relevant to this application are as follows:

retail premises means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale).

rural industry means an industry that involves the handling, treating, production, processing or packing of animal or plant agricultural products, and includes:

(a) agricultural produce industry, or
(b) livestock processing industry, or
(c) use of composting facilities and works (including to produce mushroom substrate), or
(d) use of sawmill or log processing works, or
(e) use of stock and sale yards, or
(f) the regular servicing or repairing of plant or equipment used for the purposes of a rural enterprise,
undertaken for commercial purposes.

shop means retail premises that sell groceries, personal care products, clothing, music, homewares, stationery, electrical goods or other items of general merchandise, and may include a neighbourhood shop, but does not include food and drink premises or restricted premises.

vehicle body repair workshop means a building or place used for the repair of vehicles or agricultural machinery, involving body building, panel building, panel beating, spray painting or chassis restoration.

vehicle repair station means a building or place used for the purpose of carrying out repairs or the selling of, and fitting of accessories to, vehicles or agricultural machinery, but does not include a vehicle body repair workshop.

vehicle sales or hire premises means a building or place used for the display, sale (whether by retail or wholesale) or hire of motor vehicles, caravans, boats, trailers, agricultural machinery and the like, whether or not accessories are sold or displayed there.

Wagga Wagga Development Control Plan 2005

26 The Wagga Wagga Development Control Plan 2005 (the DCP) applies, and the site is included in the 1(f) Arterial Road Frontage (Rural Living Area) subzone. The DCP identifies a “motor showroom” and a “car repair station” as land uses that are “generally not suitable” in this subzone; a “rural industry” is identified as a land use that needs Council consideration.

Issues

27 The Council contended that the application should be refused because the proposed development includes a “vehicle sales or hire premises” and a “vehicle repair station” which are prohibited in the Draft LEP (now the 2010 LEP), and the development is inconsistent with the relevant zone objectives of the RU1 zone; that the scale and density of the development is inconsistent with the prevailing rural context and setting of the locality; that the proposal will result in an unjustified loss of prime crop and pasture land contrary to the objectives of the Rural zone, and cl9(3) of the Rural LEP; that the proposal will set an inappropriate precedent encouraging multiple similar developments in the locality; and inconsistency with the DCP.

Evidence

28 The hearing commenced with a view of the site, and of the locality, including development along the Sturt Highway and on the land to the south west of the site.

29 Expert planning evidence was given on behalf of the applicant by Mr Ian Graham and on behalf of the Council by Mr Stephen Cook. Expert evidence on agricultural issues was given by Mr David McMahon on behalf of the applicant and by Mr David Davis on behalf of the Council.

Consideration

30 The first issue to be determined is the characterisation of the proposed development. It was common ground that unless the proposed development, or any part of it which is not ancillary, is to be characterised as a “shop”, it is permissible under the Rural LEP. The initial determination to refuse consent was made on the basis that the proposed development was a “shop” and was therefore prohibited. The parties relied on the decision of Moore SC in McMaster v Wagga Wagga City Council [2009] NSWLEC 1237, delivered after the Council’s initial determination, and it was common ground that most of the equipment proposed to be sold from the premises would fall within the definition of “motor vehicle” adopted in those proceedings, namely that it is a vehicle built to be propelled by a motor that forms part of the vehicle and would include items used for agricultural purposes such as tractors. The applicant contends that the proposed development is a motor showroom and servicing workshop for motor vehicles and equipment used for rural purposes.

31 The applicant submits that the development should be characterised as a “rural industry” under the 2010 LEP; the Council submits that it should be characterised as including a “vehicle sales or hire premises” and “vehicle repair station”.

32 The approach to be adopted to characterisation of the proposed development was stated by Kitto J in Shire of Perth v O’Keefe (1963) 110 CLR 528:

The application of the by-law in a particular case is therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.

33 The applicant submits that the “development the subject of the development application” which requires consideration in accordance with s79C of the Act is to be identified by reference to the development application form, and the supporting documents including the SEE. The Council submits that the submission made in support of the s82A review application, and in particular Annexure B, should also be considered.

34 The characterisation of development is not determined simply by how it is described in the development application: Hopkins v Tweed Shire Council (2001) 113 LGERA 406. The development application form describes the proposed development as “Rural Industry – heavy machinery servicing workshop and sales”. The accompanying documents provide further details, including in the Traffic Impact Statement that the proposed development is a new WesTrac sales and service facility to replace an existing facility in Say Street approximately 500m to the south west. Additional description in the SEE is referred to in paragraphs 4-6 above.

35 The Council submits that the submission made on 22 September 2009 (and its annexure) can be considered as an amendment of the development application. That is not consistent with the Report of Development Application provided by Council officers as part of the s82A review, which states that the proposal had not been amended. That Report (in the Council’s bundle of documents) makes it clear that the submission was considered in the course of the s82A review on the basis that the decision of Moore SC in McMaster v Wagga Wagga City Council [2009] NSWLEC 1237 required reconsideration of the basis for the original determination that the proposed development was prohibited. The Report notes:

The findings of this case require the Panel, therefore, to consider a broader range of products as potentially being motor vehicles when assessing the subject application than were initially. To this end it seems that the vast majority, if not all, of the machinery proposed to be sold at the premises subject to the application, would now be considered to be motor vehicles in light of McMaster v Wagga Wagga City Council [2009]. It follows then, that the part of the proposed development which had previously been assessed as being a “shop” should more rightly be characterised as being a “motor showroom”.

36 I agree with the applicant that the submission made in support of the s82A review does not form part of the development application. However, the task of characterisation requires an understanding of “the purpose to be served by the use of the premises”, and the further details of the proposal provided in the SEE, the Traffic Impact Statement, and in the evidence of the expert planners, are relevant in understanding that purpose.

Rural LEP

37 In relation to characterisation of the proposed development under the Rural LEP, the issue in dispute between the parties concerned the proposed sales of parts to persons other than those having their vehicle or equipment serviced at the premises, it being common ground that unless the proposed development, or any part of it which is not ancillary, is to be characterised as a “shop”, it is permissible under the Rural LEP. The Council submits that the proposed sales of parts should be considered an independent use which would be prohibited under the Rural LEP and under the 2010 LEP. The applicant’s position is that such sales should properly be regarded as ancillary to the dominant use.

38 The parties were in agreement as to the appropriate principles to be applied. In Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 Glass JA held (at 161):

It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.
…
Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed.

39 This proposition was expanded on in Baulkham Hills Shire Council v O’Donnell (1990)69 LGRA 404 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 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. This is a fortiori the case where the "ancillary" use has pre-dated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not "ancillary" to any other use.

40 The area of the proposed building occupied by the Parts Warehouse includes entrances from the Workshop area, the Office, and the southern side of the building. The plans include a bench separating the outside entry from the Parts Warehouse. It was not in dispute that the Parts Warehouse will provide parts for use in the workshop service bays as part of the servicing of vehicles and equipment, for which the customer would be charged, and parts for sale either to customers coming to the premises or for supply to customers for servicing of equipment away from the premises. In Mr Graham’s opinion the specialised nature of the heavy machinery to be serviced does not equate to typical spare parts retailers which generate more traffic, and the size of the service counter indicates the small number of customers expected to use this area. Mr Graham’s evidence that the sale to customers other than those having their vehicles or equipment serviced at the premises would be in the order of 5 to 15 visits per day, and that the number of staff in the warehouse would not change if such sales were not permitted, was not contradicted. On the basis of that evidence I accept that the sale of parts to customers other than those having their vehicles or equipment serviced at the premises would be small in scale in comparison to the warehousing of parts for use in the servicing of vehicles and equipment on the premises.

41 However, that is not the end of the analysis. I accept the evidence of Mr Graham that the servicing of heavy plant and machinery is a specialised industry requiring the servicing of vehicles both onsite and in the field, and that this development would be a specialised agency for its brand and the only agency in the region so that people not wanting to have their vehicle serviced there would come and buy parts. While these sales could be regarded as ancillary, the provision of a service desk and separate entrance, the location of parking adjacent to that entrance, and the contemplated sales of parts for fitting by persons not employed in the servicing of vehicles on the premises, point to this being an independent use in the sense discussed in O’Donnell. For these reasons, I am of the view that while the sales of parts to customers other than those having vehicles serviced at the premises could be regarded as related to the provision of parts as part of the servicing of equipment conducted at the premises, it should be regarded as an independent use. That use is best characterised as being a “shop”, as that term is defined in the Model Provisions.

42 While the definition of a “service station” in the Model Provisions envisages a building or place where spare parts and accessories for motor vehicles are sold, it is worded in such a way as to indicate that it is the function of fuelling motor vehicles involving the sale of petrol, oil or other petroleum products that distinguishes a service station from other uses. The proposed retail sale of spare parts could not be so characterised.

43 The consequence of concluding that part of the premises is to be used for a purpose prohibited by the Rural LEP is that consent should be refused, or a condition imposed to prevent such a use. If I am wrong in this conclusion, and the proposed sale of parts to customers other than those having their vehicles serviced at the premises is an ancillary use subsumed by the other permissible use or uses, the issue is whether the proposed development should be approved on its merits.

Scale and density

44 The Council contends that the scale and density of the proposed development is inconsistent with the prevailing rural context and setting of the locality.

45 The site is adjacent to an arterial road, and cl 5(1) of the Model Provisions requires consideration of the probable aesthetic appearance of the proposed building or work when used for the proposed purpose and viewed from the arterial road.

46 Mr Cook and Mr Graham agreed that the proposed premises are of a large scale in regards to height, width and floor area, and that the immediate surrounds and adjacent development are of a low scale; and that there are a limited number of non rural land uses in the immediate vicinity of the site. They disagreed on whether the premises would be out of context with surrounding development in terms of nature, scale and density. Mr Cook was of the opinion that the locality and highway corridor between Gumly Gumly and Tasman Road remains predominantly rural in character because the most common land uses are rural and agricultural type uses, and that non rural uses are not dominated by industrial or commercial uses. In his opinion there is a significant difference in character of the development on either side of Tasman Road. Mr Graham was of the opinion that the area between Tasman Road and Bakers Lane is not rural in character and consists of a number of forms of urban development, and the large scale of the development would not be out of character as the buildings to the west, south and north are of a similar size.

47 The boundary represented by Tasman Road between the land formerly subject to the Rural LEP and that subject to the Wagga Wagga Local Environmental Plan 1985, and between the land now zoned RU1 Primary Production and that zoned IN1 Industrial under the 2010 LEP, was apparent from the site view, and is confirmed by the Land Use Survey Map which is Attachment 5 to Mr Cook’s Statement of Evidence and the photographs which are Attachment 1 to the Statement of Evidence of Mr Graham. I agree with Mr Cook’s description that there is a significant difference in the character of the development on either side of Tasman Road, and that the land on either side of it forms two discreet localities, neither of which is similar to the other and neither encroaching on the other. While similar in nature to some, the proposed building, with a height of 10.7m at its highest point, is higher than any of the buildings located in the industrial zoned land included in Attachment 1 to Mr Graham’s Statement of Evidence. To the east of the site some 800 m away is the Riverina Drive In Leisure Centre, which according to the notation on the photograph is 7.5m high. The other structures to the east of the site are up to 4.5m high, being two motels, Kayles Constructions, and a 6.0m high service station and truck stop, and the Gumly Gumly General Store and Bottlemart. Mr Cook’s evidence that the ground floor area of the proposed building at 1900 sqm, and the southern elevation fronting the Sturt Highway at 66m in width, are significantly greater than any other development in the immediate vicinity and east of Tasman Road, was not contradicted. Having regard to the evidence from the site view and the photographs, I accept the evidence of Mr Cook that the predominant character of the locality east of Tasman Road is rural and that the non-rural land uses along the Sturt Highway are not industrial or large scale commercial uses. When viewed in this context, the scale and nature of the proposed development is out of character with that in its locality.

Zone objectives

48 Clause 9(3) requires consideration of whether the proposed development is consistent with the objectives of the zone. In Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Biscoe J addressed the differing interpretations given to the term “consistent”:

45 Clause 17(2) of the Harbour REP prohibits the grant of development consent unless the consent authority is satisfied that the development is “consistent with the aims” of the Harbour REP and the “objectives of the zone” in which it is proposed to be carried out. The definition of “consistent” in the Macquarie Dictionary (third edition) is: “agreeing or accordant; compatible; not self-opposed or self-contradictory”. In a similar context to the present it has been said that “consistent” means not antipathetic: Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 at 27 and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 at 264, both decisions of Pearlman CJ. In Gillespies v Warringah Council (2002) 124 LGERA 147 at [70], [74] Bignold J considered that the word “consistent” is not confined to the notion of the proposed development not being antipathetic and is synonymous with compatible. I agree.

49 It was common ground that the site is categorised as class 2 agricultural suitability and is accordingly “prime crop and pasture land” as defined in the Rural LEP. Mr McMahon and Mr Davis agreed that the site is not economically viable as a standalone traditional farm; that intensive agricultural activities such as feedlots would not be viable owing to the small size and mixed land uses in the locality; that the location of the site raises potential conflicts between agricultural and urban land uses, depending on the venture and management; that while there is likely to be groundwater resources under the site there has been a licence embargo since 2000; and that there is a Riverina Water mains along the northern boundary. The experts agreed that the site could be used for a market garden or other shedded agriculture, and that crops such as lettuce could be grown on the site; however Mr McMahon commented that while there would be a market there would need to be a place to process it. The experts agreed that there are market gardens in NSW grown using potable water. An alternative use of the site could be for small scale animal husbandry such as rabbit farming, squab or quail; the experts agreed that this would occur in a shedded environment, not relying on the pasture on prime crop and pasture land; and that the adjoining land uses would need to be considered.

50 Clause 10(1)(a) requires consideration of the effect of the carrying out of the development on the present use of the land, the potential use of the land for the purposes of agriculture and the potential of any land which is prime crop and pasture land for sustained agricultural production. Based on the evidence of Mr McMahon and Mr Davis, I am satisfied that there is the potential for use of the site for agricultural production in the form of a market garden or small scale animal husbandry.

51 The proposed development would preclude the use of that part of the site on which construction is proposed for further agricultural use. Whether the test for consistency is that a proposal is not antipathetic, or that it is compatible, I agree with the Council that the removal of part of the land from further agricultural use is not consistent with objective (a)(i) of protecting, enhancing or conserving prime crop and pasture land. The Rural zone objectives include (b) preventing the unjustified development of prime crop and pasture land for purposes other than agriculture. Ms Duggan for the applicant submitted that the limited potential agricultural uses of the site mean that it would not be an efficient use of the land and the development could not be described as “unjustified”. While the focus of assessment of this application is on the site for which it is proposed, in considering whether the proposed development for a purpose other than agriculture is “unjustified” it is relevant to have regard to the current location of the business on industrial zoned land, and the evidence of Mr Cook which was not contradicted that there is vacant industrial zoned land. I am not satisfied that the proposed development is consistent with objective (b).

The 2010 LEP

52 The 2010 LEP includes the savings provision in cl1.8A. In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J summarised the authorities on the weight to be given to a draft LEP, particularly in the circumstances where it was a draft when an application was lodged and has since been gazetted with a transitional provision. The fact that 2010 LEP has been made ensures that the plan is certain and imminent and accordingly, must be given significant weight in the determination of the application. However, due to the savings provision, the inquiry does not stop there. In Blackmore at [30], Lloyd J stated:

30. Whether one applies the test of “significant weight”, or “some weight”, or “considerable weight” or “due force” or “determining weight” to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is “antipathetic” thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council [1991] 74 LGRA 185 at 193).

53 The first issue to be considered in determining whether the proposed development is consistent with the aims and objectives of the 2010 LEP is whether the proposed development would be permissible under the 2010 LEP. The applicant submits that it would be, on the basis that the proposed development should be characterised as “rural industry”. The Draft LEP included “rural industry” as a use permissible with consent. While a “rural industry” is no longer specifically included in the RU1 zoning table in the 2010 LEP, it was common ground that if the proposed development is properly characterised as “rural industry” it would not be caught by the prohibition of “industry” in the RU1 zone by virtue of cl 9 of State Environmental Planning Policy No 30 – Intensive Agriculture, which provides:

9 Rural industries
A reference in an environmental planning instrument, whether made before or after the commencement of this clause, to industry does not include a rural industry.

54 The Council submits that the proposed development should be characterised as a “vehicle sales or hire premises” and a “vehicle repair station”, both of which are prohibited in the RU1 zone, and that if the development also includes the retail sale of spare parts there is a sales component which should be characterised as “retail premises” which is also prohibited in the RU1 zone.

55 Mr Cook and Mr Graham agreed that if not ancillary to the servicing of the vehicles, the sales of vehicles from the premises is best characterised as a “vehicle sales or hire premises”, and that if not ancillary to the servicing, the sale of machinery spare parts is best characterised as a “retail premises”. The agreement of Mr Cook and Mr Graham that a “vehicle repair station” and “rural industry” are mutually exclusive, neither being a species of the other, is consistent with the approach required by cl2.3(3)(b) of the 2010 LEP. Mr Graham was of the opinion that the proposed development should be characterised as a “rural industry” because its purpose is to facilitate the sales and servicing of plant and equipment for use in rural enterprises. Mr Cook disagreed, on the basis that while some of the machinery to be serviced would be for the “purposes of a rural enterprise”, other machinery would not be used for that purpose, such as road construction machinery, and he was of the opinion that the appropriate characterisation was as a “vehicle repair station”.

56 If the information as to the range of equipment to be sold and serviced provided in the submission of 22 September 2009, including the annexure, is to be taken into account in characterising the development, it is apparent that not all the equipment would be used for agricultural purposes or related purposes such as mining or forestry, and some such as paving equipment would be used in road construction or maintenance. Mr Graham was of the opinion that maintaining roads, including regrading and surfacing, is part of a rural purpose in a rural area; however, he agreed in cross examination that it was equally an urban purpose. On that basis, the development would not be for the “servicing or repairing of plant or equipment used for the purposes of a rural enterprise”, and the broader description of development for the “repairs…of …vehicles or agricultural machinery” would be a more appropriate designation of the purpose being served by the use of the premises. If the characterisation task is limited to the description of the development provided in the development application and the documents provided with it, it may be open to conclude that the servicing component of the development could fall within paragraph (f) of the definition of a “rural industry”, but only if the plant or equipment proposed to be repaired or serviced is used “for the purposes of a rural enterprise”. Bearing in mind the approach required in Shire of Perth v O’Keefe, on the evidence before me which includes the evidence of the expert planners I am not satisfied that the proposed development is so limited. I agree with the Council that the appropriate characterisation of the servicing component of the proposed development is the broader description of the repairs of “vehicles or agricultural machinery”, and that this component is a “vehicle repair station”, which would be prohibited in the RU1 zone.

57 Even if I am wrong on that, and the appropriate characterisation of the servicing component of the proposed development is as a “rural industry”, the component of the development consisting of the sales of plant and equipment to be displayed in the area between the building and the Sturt Highway must also be considered. Accepting the projections in the Traffic Impact Statement, the sales of plant and equipment would generate 30 one way trips per day, or 22 percent of the total estimated daily trips to the site. I agree with Mr Cook that the sale of the machinery and equipment could be expected to generate business for the servicing component of the premises by increasing the number of machinery in use requiring servicing. I do not accept the further proposition put by Mr Graham, that the display of machinery on the highway frontage would be used to allow identification of the site to those looking for servicing and repairs to heavy machinery. The applicant foreshadowed a separate development application for signage. The area proposed to be used for the display of these items is significant, both in terms of its prominent position on the site facing the Sturt Highway, and its size, which on Mr Cook’s evidence is 1500 sqm. Those factors, together with the description of the proposed development in the development application as being for both servicing and sales, lead me to conclude that the proposed sales of machinery and equipment is an independent use which is not ancillary to the servicing and repair component. That use would best be characterised as a “vehicle sales or hire premises”, which is prohibited under the 2010 LEP.

58 For the reasons set out in paragraph [41] above, the proposed sale of spare parts is an independent use that falls within the description of “retail premises” under the 2010 LEP and would be prohibited.

59 Notwithstanding this conclusion, by virtue of cl1.8A if the proposed development is permissible under the Rural LEP, consent could still be granted. Whether it should be depends on whether it is consistent with the aims and objectives of the 2010 LEP. The continuation in the 2010 LEP of the boundary represented by Tasman Road between the industrial zone on the west and the rural zone to the east is entitled to be given significant weight. It was common ground that the range of uses now prohibited in the RU1 zone is more extensive than was the case in the Rural zone under the Rural LEP. The non-agricultural uses permissible with consent in the RU1 zone would generally be of a smaller scale than the proposed development. Clause 5.3(4) of the 2010 LEP enables consent to be given to development of land for a purpose that may be carried out in the adjoining zone, however this is subject to the requirements of paragraphs (a) and (b) being met, and the evidence before me did not address those requirements. For the reasons expressed in paragraph [47] above, I agree with the Council that the proposed development is not consistent with the objective of the RU1 Primary Production zone to “maintain the rural landscape character of the land”. I am not satisfied that the proposed development is consistent with the aims and objectives of the 2010 LEP.

Conclusion

60 The proposed development is not permissible under the Rural LEP, or if it is, should not be approved because its scale and nature are inconsistent with the character of the locality, and it is not consistent with the objectives of the Rural zone as required by cl9(3) of the Rural LEP. While cl1.8A of the 2010 LEP would not preclude consent being granted to the proposed development even if not all its component parts would be permissible in the RU1 zone, the 2010 LEP is entitled to be given significant weight, and the proposed development is not consistent with the aims and objectives of the RU1 zone. Development consent should be refused. That conclusion makes it unnecessary to determine the remaining contentions raised by the Council.

61 The Orders of the Court are:

1. The appeal is dismissed.
2. Development application DA08/0489 for the erection of premises for use as a heavy machinery servicing workshop and sales of machinery at Lot 21 DP 1122318, 1 Tasman Road Gumly Gumly is refused.
3. The exhibits are returned except for exhibits A, B and 4.

Linda Pearson
Commissioner of the Court