Mitchell v Wollondilly Shire Council

[2000] NSWLEC 54

Land and Environment Court

of New South Wales

CITATION:

Mitchell v Wollondilly Shire Council [2000] NSWLEC 54

PARTIES:

APPLICANT
Mitchell

RESPONDENT
Wollondilly Shire Council

FILE NUMBER(S):

10943 of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Development :- Application for development consent for pet cremator - industry
industries and commercial premises prohibited within the zone - proposed use not constituting an industry - proposed use being commercial use - commercial use prohibited

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Model Provisions 1980
Factories, Shops and Industries Act 1962

CASES CITED:

Woollahra Municipal Council & Anor v Sydney City Council & Anor (1966) 12 LGRA 175;
Woollahra Municipal Council v Minister for the Environment & Anor (1991) 23 NSWLR 710;
South Australia National Football League Inc v City of Charles Sturt (1998) 97 LGERA 293 ;
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGERA 344

DATES OF HEARING:

16 March 2000

DATE OF JUDGMENT:

03/21/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Palmer (Solicitor)

SOLICITORS
Caldwell Martin & Cox

RESPONDENT
Mr J Maston (Barrister) with Mr A Seton (Solicitor)

SOLICITORS
Marsdens

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10943 of 1999
CORAM: Cowdroy J
DECISION DATE: 21/03/00

Mitchell

Applicant

v

Wollondilly Shire Council

Respondent

JUDGMENT

Facts

1. A question of law has arisen concerning the applicant’s proposed use of a shed which is erected on land at 105 Garlicks Range Road, Orangeville being lot 261 in deposited plan 71131 (“the land”). Such land is located in the Wollondilly Local Government area and pursuant to the provisions of the Wollondilly Local Environmental Plan 1991 (hereafter referred to as “the LEP”) it is zoned ‘Agricultural Landscape’ 1(b). The LEP was gazetted on 23 August 1991.

2. On 16 March 1999 Wollondilly Shire Council (“the council”) received the applicant’s development application for the use of the shed which was erected pursuant to a building approval granted on 31 August 1979 as a pet cremation facility.

3. From the agreed facts, the cremation process is detailed as follows:-

6A. The proposed pet cremation facility involves:

(i) The collection and transportation to the subject land of deceased animals in body bags;

(ii) The individual cremation of the animals referred to in (i) in a self contained cremator unit having dimensions of 2.2 m high, 1.75 m wide and 3.2 m long to be installed in the shed referred to in paragraph 5 fuelled by the two LPG burners. Such shed being at least 150 m from the closest residence.

(iii) Placement of the ashes of the cremated animal referred to in (ii) in an urn and delivery of that urn to the place requested by the customer.

(iv) The installation of an above ground 3 tonne LPG storage tank to provide gas for the LPG burners referred to in (ii).

4. The cubic capacity of the storage tank proposed is 7.3 m3. The only emissions from the operation is heat. No smoke or odour is emitted from the cremator unit except when the front loading door is opened. Internal gases of the unit are broken down in two chambers with two gas burners.

5. In the zone 1(b) Agricultural Landscape numerous activities are prohibited pursuant to the LEP. They include commercial premises (other than veterinary establishments) and industries other than rural extractive, offensive or hazardous or potentially offensive or hazardous industries. Clause 7 of the LEP adopts, with certain exceptions the Environmental Planning and Assessment Model Provisions 1980 (“the Model Provisions”). The term ‘industry’ is defined in the Model Provisions as follows:-

(a) any manufacturing process within the meaning of the Factories, Shops and Industries Act, 1962; or

(b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business;

but does not include an extractive industry;

6. The definition of ‘manufacturing process’ pursuant to the Factories, Shops and Industries Act 1962 is as follows:-

“Manufacturing process ” means any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking up, or adapting of any goods or any articles or any part of an article for trade or sale or gain, or as ancillary to any business, and includes any handicraft or process declared by the Governor, pursuant to this Act, to be a manufacturing process.

7. The council acknowledges for the purpose of these proceedings that the proposed use does not constitute an ‘industry’ as defined in the LEP. In doing so, it has had regard to such term as explained by Else-Mitchell J in Woollahra Municipal Council & Anor v Sydney City Council & Anor (1966) 12 LGRA 175. In that decision, the Court determined that the process of incinerating garbage was not the breaking up of articles within the meaning of paragraph (b) of the term ‘industry’ as defined.

8. The remaining question is whether the activity being conducted in the shed renders such premises ‘commercial premises’ as defined in the Model Provisions. The term ‘commercial premises’ is defined therein as follows:-

“commercial premises” means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause;

9. The respondent submits that the activity of cremating the remains of animals is but part of a commercial activity and as such, it does not constitute a commercial activity as defined in the Model Provisions. It submits that the Court would have regard to the fact that the ‘commercial’ aspect of the whole undertaking is conducted elsewhere and that only the activity of physically disposing of the deceased animal would be conducted in the shed. It argues that the definition is concerned with a commercial activity which is complete.

10. In applying the definition of ‘commercial premises’ contained in the LEP the Court is required to consider the proposed use of the building or place. In Woollahra Municipal Council v Minister for the Environment & Anor (1991) 23 NSWLR 710, Kirby P at 728 said:-

The test to be applied in determining the “purpose” of the proposed development is an objective one. It requires the court:
“…to refer to the end which is seen to be served by a particular use of the premises, rather than in a subjective sense to indicate the object in the minds of particular individuals.”
See Owen J in Shire of Perth v O’Keefe (1959) 110 CLR 529 at 534.

11. In North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGERA 344 at 353, Kirby P stated:-

What is required is the determination of the appropriate genus which best describes the activities in question.

Although His Honour was referring to the context of ‘existing use’ the statement has application in the current proceedings. If the use of the shed is for trade the premises assume a commercial use as defined even though other commercial aspects of the applicant’s undertaking may take place elsewhere. The question to be answered is: how is the proposed use of the premises the subject of the development application to be properly characterised?

12. The cremation activity being carried out on the site is acknowledged to be part of a commercial activity of the operation. It is being used for the purpose of ‘trade’ because the cremation of animals is an integral part of that activity, which is a commercial enterprise (see South Australia National Football League Inc v City of Charles Sturt (1998) 97 LGERA 293 at 298 - 299). No alternative use for the premises is advanced by the applicant. Accordingly the use of the shed would be one for commercial purposes and it would thereby become ‘commercial premises’ within the definition contained in the Model Provisions and consequently within the provisions of the LEP. As such it is prohibited.

Findings

13. The Court therefore answers the question of law as follows:-

1. The proposal is not included within the definition of ‘industry’ contained in the LEP.

2. The proposal is not permissible in the 1(b) Agricultural Landscape zone for the reason that the premises erected on such land would be used as ‘commercial premises’ as contained in the LEP.

3. The exhibits be returned.