No Dump Residents Association Inc v Collex Pty Ltd (No 2)

[2005] NSWLEC 136

Land and Environment Court

of New South Wales

CITATION:

No Dump Residents Association Inc v Collex Pty Limited (No.2) [2005] NSWLEC 136

PARTIES:

APPLICANT
No Dump Residents Association Inc

RESPONDENT
Collex Pty Limited

FILE NUMBER(S):

40888 of 2004

CORAM:

Talbot J

KEY ISSUES:

Existing Use Rights :- whether prohibited notwithstanding concession to allow public authority to continue the use.
Existing Use:- whether lost when use becomes State significant development under s 76A(8) of the Environmental Planning and Assessment Act 1979 and permissible with consent.

LEGISLATION CITED:

Clyde Waste Transfer Terminal (Special Provisions) Act 2003 s 4, s 5(1)
Environmental Planning and Assessment Act 1979 s 76A, s 76A(3), s 76A(7), s 76A(7)(b), s 76A(7)(b)(i), s 76A(7)(d), s 76A(8), s 76A(8)(a), s 76A(8)(c), s 76A(9), s 106(a), s 107, s 107(1), s 109
Environmental Planning and Assessment Amendment Act 1997
Freight Rail Corporation (Sale) Act 2001 s 11
Local Government Act 1919 Part XIIA
Transport Administration Amendment (Rail Corporatisation and Restructuring) Act 1996 s 19G, s 19H, s 19J
Environmental Planning and Assessment Regulation 2000 cl 32 Sch 3
Auburn Planning Scheme Ordinance cl 63
Auburn Local Environmental Plan 43 cl 7,
Auburn Local Environmental Plan 2000 cl 20, cl 20(4), cl 58
County of Cumberland Planning Scheme Ordinance
Environmental Planning and Assessment Model Provisions 1980 cl 35,
Ordinance No. 105

CASES CITED:

Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363 ;
Drake & Ors; Auburn Council v Minister for Planning and Another; Collex Pty Limited [2003] NSWLEC 270, unreported;
Hunter Douglas Australia v Perma Blinds Pty Limited (1976) 122 CLR 49;
R v Hughes (2000) 202 CLR 535 ;
Re Applications of Shephard [1983] 1 NSWLR 96 ;
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305;
Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138

DATES OF HEARING:

09/03/05, 10/03/05, 11/03/05

 
DATE OF JUDGMENT: 

03/29/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A B Brzoson (Agent)
SOLICITORS
n/a

RESPONDENT
Mr D P F Officer QC with Mr J E Robson SC
SOLICITORS
Freehills

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

29 March 2005

40888 of 2004 No Dump Residents Association Inc v Collex Pty Limited

JUDGMENT

1 Talbot J: On 5 November 2004 I found that the No Dump Residents Association Inc (“the applicant”) was entitled to a declaration to the effect that the only development authorised to be carried on pursuant to a development consent that is taken to have been granted under s 4 of the Clyde Waste Transfer Terminal (Special Provisions) Act 2003 (“the Clyde Act”), is the purpose of a Waste Transfer Terminal on that part of Lot 201 Deposited Plan 1007683 depicted as the Revised Transfer Building on Figure 1.1 in a Supplementary Environmental Impact Statement (“SEIS”) prepared in support of a Development Application made by Collex Pty Limited (“the respondent”) on 2 August 2001 under, or purporting to be made under, the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) together with a smaller section of Lot 201 shown as Proposed Site Location in Figure 5.1.2.

2 Putrescible waste is delivered, tipped, compacted and containerised in the waste transfer building. The applicant challenges the lawfulness of carrying on the following activities without development consent required in respect of State significant development pursuant to s 76A(8) of the EP&A Act:-

(a) the removal of filled waste containers from the slug packer end of the waste terminal constructed on the Site;

(b) the transfer of filled waste containers to an adjacent railway siding hardstand area;

(c) the temporary storage of filled waste containers on the railway siding hardstand area;

(d) the movement of the filled waste containers from the railway siding hardstand area onto the carriages of trains operated by Pacific National (NSW) Pty Ltd;

(e) the movement of empty waste containers from the carriages of trains operated by Pacific National (NSW) Pty Ltd onto the railway siding hardstand area;

(f) the storage of empty waste containers on the railway siding hardstand area.

3 The applicant further alleges that the above activities are prohibited development as either an offensive storage establishment as defined in Auburn Local Environmental Plan 2000 (“LEP 2000”) or alternatively as a waste management facility or works within the meaning of cl 32 of Schedule 3 to the Environmental Planning and Assessment Regulation 2000 (“the EP&A Regulation”).

4 The whole of Lot 201 in Deposited Plan 1007683 is part of the area known as the Clyde Marshalling Yards. It is currently owned by Pacific National (NSW) Pty Limited and occupied by Collex for the purpose of carrying out the abovementioned activities. Collex commenced operations at the Clyde Marshalling Yards on 30 August 2004. Waste is hauled by train from the Clyde Marshalling Yards to an Intermodal Facility at Crisps Creek for processing and management at Woodlawn.

5 In its defence, in answer to the applicant’s claim, the respondent says that the operations on Lot 201 (including those related to the movement of containers from and outside the building in which they are filled) are permissible as a continuation of the rail freight operations which have taken place in the Clyde Marshalling Yards since it opened in 1892. This aspect of the defence relies upon the alleged continuance of an existing use under s 107 of the EP&A Act. Any reliance by the respondent upon a claim for the continuance of the use pursuant to s 109 of the EP&A Act has not been pursued. The respondent has accepted the initial evidentiary onus of establishing an existing use. The alleged existing use by the respondent is described as unloading and loading of rolling stock including the temporary storage of containers as part of a rail freight operation.

6 The respondent relies upon an analysis of the history of the use of the site to show that the activity carried on after a prohibition came into effect can be characterised as the same as or encompassed within the activity carried on before it became prohibited under the provisions of LEP 2000.

The history of the use

7 From 1876 to 26 November 2002 The Commissioner for Railways or various successors have been the registered proprietor of the land. On 26 November 2002 Pacific National (NSW) Pty Limited became the owner as the transferee from Freight Rail Corporation. There is no dispute that rail freight operations first commenced at a part of what is now the Clyde Marshalling Yards in the late 1880’s and that the western area was included in the Clyde Marshalling Yards by at least 1909.

8 Kevin John Lohan is employed as the Yard Master at the Clyde Marshalling Yards. Mr Lohan commenced work at the yards in 1989 and has personally observed on a daily basis the rail related activities that have occurred since that time. Based on these observations, Mr Lohan says that the yards have been used continuously as a rail freight intermodal terminal handling a variety of rail freight in various modes including containers during the period from 1996 to 2003. The use extended to the western end of the Clyde Marshalling Yards now used by Collex for the loading and unloading of containers onto rail wagons.

9 During the time between 1996 and 2003 on average 15 to 20 trains in any 24-hour period arrived and departed from the yards. They remained in the yard for different lengths of time for the purposes of shunting, attaching and detaching wagons, awaiting access to other parts of the rail network, maintenance and loading and unloading of various materials and commodities including various types of containers ranging in size from 20 feet to 48 feet, bulk products such as sugar and cement, scrap steel that was unloaded by magnetic crane, steel billet from the BHP mill at Rooty Hill and louvre vans that were unloaded by hand onto the old platform that was on the western end of the rail siding known as 20 Road. According to Mr Lohan the western area was used for the loading of different types of freight brought by truck onto rail wagons and for the unloading of freight from rail wagons to be placed on the back of trucks. Usually the freight was unloaded from trucks onto the hardstand area by forklift. After the trains had arrived and empty containers had been unloaded, full containers were loaded onto the wagons. Some trains were up to 800 metres long. Containers were commonly stowed on the hardstand area adjacent to the rail sidings.

10 Mr Lohan recalls that before Collex occupied the western area it was used by a container shipping company, FCL Interstate Transport Services Pty Limited (“FCL”), which ran a number of freight train services from the western area. FCL’s activities involved the stripping of trains by the unloading of containers from Port Botany and the loading of containers for delivery to Port Botany. FCL also stripped and loaded trains from Adelaide and Melbourne.

11 Currently the Collex operations are in the “ramp-up” stage and according to its Transfer Facilities Manager, Daniel Gerard Conlon, when the site is operating to its full capacity the operations of Collex will involve the following:-

(a) Trucks will deposit waste into a building erected on the site (known as the Transfer Building).

(b) The waste will be packed into containers in the Transfer Building. Most of the packing will take place during the day.

(c) As each container is packed, it will be taken from the Transfer Building by forklift directly to be placed on railway wagons (1 per wagon) or to the hard stand area, depending on the presence of available wagons.

(d) The first 20 containers will be placed onto wagons directly from the Transfer Building during the course of the day.

(e) A further 35 containers will be placed onto other wagons (again, 1 per wagon) either from the hardstand area or directly from the Transfer Building between 8.30pm and 11pm, following the arrival of the return train from Woodlawn and the unloading of the empty containers from those wagons. The arrival and departure times are set by the Rail Infrastructure Corporation and can be varied by them at any time.

(f) These 55 wagons carrying full containers will be coupled together to form a train.

(g) One train per night, with a maximum of 6 trains per week, will travel to Crisps Creek near the Woodlawn Bioreactor for unloading. The estimated departure time from Clyde is 1am. The train will arrive at Crisps Creek between 6am and 7am. Trains will not run to Crisps Creek on Sunday night/Monday morning.

(h) The return train from Woodlawn will convey 55 empty containers.

(i) When the return train arrives at Clyde it enters the Clyde Marshalling Yards from the west onto a siding adjacent to the main western line. The two locomotives which pull the train are uncoupled from the train. Shunting operations then take place in the following order:

(1) The locomotives shunt the 20 wagons carrying full containers as described in (d) above onto another siding adjacent to the main western line.

(2) 20 wagons carrying empty containers are detached for loading as described in (e) above.

(3) A further 15 wagons carrying empty containers are shunted onto another adjacent siding and detached for loading as described in (e) above.

(4) The locomotives shunt the 20 wagons referred to in (i)(2) above now carrying full containers to a siding adjacent to the main western line.

(5) They then shunt the remaining 20 wagons carrying empty containers for (sic) to a siding adjacent to the Collex area for loading as described in (e) above.

(6) The locomotives then shunt the 15 wagons referred to in (i)(3) above to a siding adjacent to the main western line and shunt them and the other wagons containing full containers to form the train as described in (f) above.

The history of planning controls

12 Pursuant to Ordinance No. 105, which came into effect during 1946, interim development by persons carrying on a public utility undertaking, expressly permitted or authorised to be carried out by acts of parliament prior to the application of Part XIIA of the Local Government Act 1919 (“the LG Act 1919”) and development of any description specified in Schedule 1 to the Ordinance was permitted development. Public utility undertakings were defined to include railway undertakings and Schedule 1 included the carrying out by persons carrying on public utility undertakings, being railway undertakings, on land comprised in their undertaking, of any development required in connection with the movement of traffic by rail, including the construction, reconstruction, alteration, maintenance and repairs of ways, buildings, works and plant, except for certain activities not relevant for present purposes.

13 The County of Cumberland Planning Scheme Ordinance (“CPSO”) maintained the same regime in respect of public utility undertakings introduced by Ordinance No. 105.

14 Auburn Planning Scheme Ordinance (“Auburn PSO”) came into force on 18 September 1970 and provided that nothing in the Ordinance shall be construed as restricting or prohibiting or enabling the responsible authority to restrict or prohibit the carrying out of development by persons carrying on railway undertakings on land comprised in their undertakings of any development required in connection with the movement of traffic by rail. The Auburn PSO did not contain a requirement that the railway undertaking be carried on by a public utility undertaking as had been provided by the Cumberland Scheme and Ordinance No. 105. The subject land was relevantly included in the area controlled by Ordinance No. 105, the CPSO and the Auburn PSO.

15 Auburn Local Environmental Plan 43 (“LEP 43”) was published in the New South Wales Government Gazette on 4 August 1989. Pursuant to cl 7, the Environmental Planning and Assessment Model Provisions 1980 were adopted with some irrelevant exceptions. The subject site is within the area controlled by LEP 43. The 1980 Model Provisions continued the effect of the Auburn PSO in respect of the carrying out by persons carrying on railway undertakings of any development required in connection with the movement of traffic by rail so that, pursuant to cl 35, nothing in LEP 43 is to be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit the carrying on of a railway undertaking.

16 LEP 2000 came into effect on 27 October 2000. Clause 58 of LEP 2000 provides that nothing in the plan is to be construed as restricted or prohibiting or enabling the consent authority to restrict or prohibit the carrying out of, inter alia, railway undertakings by a public authority or a corporation that was a public authority that has been privatised.

17 In summary therefore since at least 1946 up to 1970 the relevant planning instruments contained a provision that enabled a statutory rail corporation to carry on its activities on the subject land without the imposition of any control, in particular the requirement for development consent, under the terms of the relevant planning instrument. After the PSO came into force in 1970 the exemption applied to any person carrying on a railway undertaking without the necessity for that person to be a public utility undertaking carried on under the authority of any government department or act of parliament. When LEP 2000 came into effect the requirement for the activity to be carried on by a public authority or a privatised successor was introduced.

The relevant ownership

18 Following the lodgement of a Real Property Act 1900 Request dated 26 September 1997 State Rail Authority of New South Wales (“SRA NSW”) became the registered proprietor of the land as successor to the Railways Commissioners for New South Wales. SRA NSW lodged a further Request dated 25 October 1999 as a consequence of which Freight Rail Corporation (“FreightCorp”) became the registered proprietor of Lot 201 pursuant to the Transport Administration Amendment (Rail Corporatisation and Restructuring) Act 1996, s 19J. Under s 19G of the Act, FreightCorp was constituted a corporation. One of the principle objectives of FreightCorp, stated in s 19H, is to operate efficient, safe and reliable rail freight services. Pursuant to s 19J the Minister may, by order in writing, direct that assets of the SRA NSW be transferred to a rail corporation. FreightCorp is included in the definition of a rail corporation.

19 In 2000 a draft agreement between FreightCorp and FCL Interstate Transport Services Pty Limited (“FCL”) was prepared in respect of the land referred to as the Intermodal Terminal at Clyde pursuant to which FreightCorp granted a non-exclusive right of access to and use of the terminal to FCL. It was a condition in the draft agreement that FCL must not, without the prior consent of FreightCorp, use the terminal for its own purposes or for the purposes of any other person. FCL was appointed as manager of the terminal for the term of the agreement for the period 1 September 1998 to 31 August 2005 or any extension thereof. Any rent to be paid by FCL to FreightCorp was to be netted off against the management fee to be paid by FreightCorp to FCL for provision of services being the Handling Services and Management Services set out in the Schedule to the agreement. The Handling Services included transferring containers from rail vehicle to ground and ground to road vehicle or road vehicle to ground and ground to rail vehicle or rail vehicle to road vehicle or road vehicle to rail vehicle together with storage of containers as required by FreightCorp. The draft agreement specifically provided in cl 2.3 that the rights granted to FCL are contractual only and do not give FCL any estate or interest in the terminal. The activities of FCL referred to in the draft agreement are consistent with the observations of Mr Lohan.

20 The Freight Rail Corporation (Sale) Act 2001 authorised the Treasurer to enter into agreements for, or in connection with, the sale of the business undertaking of FreightCorp and to transfer to the purchaser any assets, rights and liabilities that comprise the business undertaking of FreightCorp. Pursuant to that power contained in s 11 of the Act, Lot 201 was transferred to Pacific National (NSW) Pty Limited by an application registered by the Registrar General on 26 November 2002. Collex commenced operations at the Clyde Marshalling Yards on 30 August 2004.

Existing use

21 When the Auburn PSO was gazetted on 18 September 1970 the subject land was held by the Railways Commissioners for New South Wales as part of the rail freight operations. The effect of cl 63 of the Auburn PSO was that no consent was required for the carrying out by the Railways Commissioners for New South Wales of a railway undertaking as development required in connection with the movement of traffic by rail. When LEP 43 applied the provisions of the Model Provisions 1980 (from 4 August 1989) the land was owned by SRA NSW. Mr Lohan confirmed that the previous freight movement operations were continuing at that time. Clause 35 and Schedule 1 of the Model Provisions had the same effect as cl 63 and Schedule 7 of the Auburn PSO.

22 After 1989 the use was continued by SRA NSW until the land was transferred to FreightCorp, which appointed FCL to manage the site. At the date of gazettal of LEP 2000, on 27 October 2000, the site was owned by FreightCorp and managed by FCL. The combined effect of cl 58 and Schedule 3 of LEP 2000 was consistent with the provisions of cl 63 and Schedule 7 of the Auburn PSO and the application of the Model Provisions through LEP 43 except that cl 58 of LEP 2000 had introduced the requirement that the carrying out of the railway undertaking must be by a public authority or a corporation that was a public authority but has been privatised.

23 Although when LEP 2000 was introduced the activities carried out by FreightCorp through its manager were lawful, the activity ceased to be carried on by a public authority or a corporation that was formerly a public authority when Pacific National (NSW) Pty Limited became the registered proprietor on 26 November 2002. It is the change in status of the registered proprietor and the person carrying on the railway undertaking as from 26 November 2002 that the respondent relies upon as the trigger for the operation of s 107 of the EP&A Act which protects a continuance of an existing use.

24 Setting aside for the moment the question of whether the activities at the Clyde Marshalling Yards were, at the relevant times in 1970, 1989 and 2000, in fact railway undertakings or some other use, there is an issue as to whether development lawfully carried on by a statutory authority immediately before the coming into force of LEP 2000 remains as the carrying on of the same development when it is not carried on subsequently by a private corporation that was not previously a public authority, even though immediately following the coming into force of the LEP it continued to be carried on by the public authority or its privatised successor.

25 Section 106(a) of the EP&A Act provides:-

In this division 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

26 By reference to the actual use up to 27 October 2000 it is possible to deduce from the evidence of Mr Lohan that the western area of the Clyde Marshalling Yards, now used by Collex within Lot 201, was used for the loading of different types of freight brought by truck onto rail wagons and for the unloading of freight from rail wagons to be placed on the back of trucks using the area between tracks 20 and 22. It is also clear from the evidence of Mr Lohan and confirmed by aerial photographs taken in 1986, 1991, 1994 and 1998 that there was a significant use of containers to transport the freight. I am satisfied that the use falls conveniently within the description of a railway undertaking in connection with the movement of traffic by rail and accordingly falls within the intention of cl 63 of the Auburn PSO, cl 7 of LEP 43 and cl 58 of LEP 2000, so that subject to the terms of each clause nothing in those environmental planning instruments could be construed as restricting or prohibiting the carrying out of the activity. It was therefore a lawful planning purpose. Mr Officer QC, who appears for the respondent with Mr Robson SC, has suggested a more narrow description to properly characterise the use as the unloading and loading of rolling stock including the temporary storage of containers. I am prepared to adopt the description suggested by Mr Officer and, subject to dealing with the contrary argument raised by the applicant in submissions, I determine that it is open for me to find at this stage that the use of the land outside the building was prima facie for a lawful purpose immediately before the coming into force of LEP 2000.

27 Under LEP 2000 the land is within Zone 4(c) – Industrial Enterprise zone and cl 20 enumerates the specific development that requires consent. Freight transport terminals require consent and are defined as follows:-

Freight transport terminal means a building or place used for the principal purpose of the bulk handling of goods for transport by road or rail, including facilities for the loading and unloading of vehicles used to transport those goods and for the parking, servicing and repair of those vehicles, trains or carriages.

28 The respondent contends that the use of Lot 201 does not fit within the definition of a freight transport terminal. It is instructive to refer to the discussion by Bignold J in Drake & Ors; Auburn Council v Minister for Planning and Another; Collex Pty Limited [2003] NSWLEC 270, unreported, commencing at [59] that clearly supports the respondent’s view. No other specified development in cl 20 requiring development consent describes the use of the land at 27 October 2000. Accordingly, as the use is not development that requires development consent it is development that is prohibited pursuant to cl 20(4) of LEP 2000.

29 It is only if the use of the site by FCL is characterised as a freight transport terminal, as defined in LEP 2000, that a question of whether consent was required to carry on that development under that instrument can be posed. I find on the facts that the activity, carried on continuously during the time before and after FCL took over under the agreement with FreightCorp, was not a freight transport terminal and that it fits within the description of railway undertaking in connection with the movement of traffic by rail.

30 Whilever the use can be characterised as fitting within the dispensation created by the application of the Model Provisions or LEP 2000 then any requirement for consent to carry on that activity or prohibition of the use in the planning instruments can be disregarded. Even if I do not accept that FCL was acting for and on behalf of FreightCorp as its Manager, any use by FCL up to the date of commencement of LEP 2000 was for a lawful purpose. Thereafter it became prohibited except to the extent it may have been carried on by FreightCorp as a corporation falling within the dispensation created by cl 58 of LEP 2000.

31 The actual use of the land before and after the date of the gazettal of LEP 2000 and the identity of the person carrying on the use remained the same. If, by reason of the identity of the user as a public authority or a privatised successor the prohibition arising from cl 20(4) could not be enforced against the public authority or its successor, nevertheless LEP 2000 had the effect of prohibiting the use that had been for a lawful purpose immediately before the coming into force of that instrument. It is important to understand the way in which cl 58 operates and I therefore set it out in full:-

58 Development by public authorities

(1) Nothing in this plan is to be construed as restricting or prohibiting, or enabling the consent authority to restrict or prohibit, the carrying out of an activity of any description specified in Schedule 3 by a public authority or a corporation that was a public authority but has been privatised.

(2) Nothing in this plan is to be construed as removing the requirement of determining authorities to consider the impact on the environment of an activity in accordance with Part 5 of the Environmental Planning and Assessment Act 1979.

32 It is interesting that Schedule 3 essentially sets out the common descriptions of developments by public authorities that have been used consistently commencing with Ordinance No. 105. Except in the case of railway undertakings, the developments are limited to those carried out by persons carrying on public utility undertakings other than mines, roads and flood mitigation works.

33 It is my view that cl 58 of LEP 2000 does not generally authorise the use of the land for a prohibited purpose but rather it allows a public authority or its successor to carry out development which is otherwise prohibited. The use therefore can be correctly described as a prohibited use.

34 Immediately following the gazettal of LEP 2000 the use was able to continue either as an exiting use within the meaning of s 106(a) in accordance with s 107 or alternatively pursuant to cl 58 whilever a public authority or a corporation that was a public authority but has been privatised carried out the activity. Once the public authority ceased to be so directly involved that it could not be described as carrying out the activity then the use could nonetheless continue by dint of s 107 as an existing use.

35 The conclusion I have reached is not inconsistent with the principle of construction that existing use provisions should be liberally construed and that the definition, characterisation and description of the uses of land generally focus on the nature of the use without reference to the identity of the individual. Attention is directed to the use of the land and any planning entitlements run with the land. Not the individual. Applying those principles to the present case the fact that the actual use of the land did not change in the period immediately before the coming into force of the LEP and subsequently, is determinative of the question whether there was an existing use within the meaning of s 106(a) following the prohibition of that use.

36 I am not attracted to an alternative argument put forward by Mr Officer in respect of the construction of the definition of existing use, namely that the absence of an expressed temporal connection between the date of the coming into force of the environmental planning instrument and the date of the effect of the instrument by prohibiting the use means that there can be an hiatus between the date of making of the LEP and its effect on the use when ultimately the public authority ceases to carry it on. I prefer to regard the provisions in cl 58 as providing one basis to carry on the use after it became prohibited and ss 106 and 107 as a parallel and coextensive right both of which immediately had effect when LEP 2000 was made.

37 I am satisfied for the reasons already outlined that the use became prohibited by LEP 2000. Nevertheless, notwithstanding the effect of cl 20(4), the use could be continued by the particular public authority. Otherwise the use could not be continued under the terms of the LEP. Subject to the applicant’s argument regarding State significant development that has yet to be dealt with, I find that the activities of FreightCorp attracted the benefit of the existing use provisions of the EP&A Act, while at the same time the successor to the public authority FreightCorp could rely on the effect of cl 58 to get around the prohibition of the use.

The applicant’s case in reply

38 Mr Brzoson is the lay representative appearing for the applicant. He has made a comprehensive submission that raises wide ranging arguments directed towards showing that the activities of FCL on the site were not lawful at the date LEP 2000 came into effect or that the activities now carried on by Collex are distinct as a dedicated waste management facility rather than a rail transport related use.

39 Succinctly put Mr Brozson says the previous use of the site was for the transport industry, whereas the site is now being used for the purpose of storing waste and transferring waste. In this respect, pursuant to the Clyde Act, the respondent is taken to have the benefit of a development consent for that part of Lot 201 comprising the waste transfer building and its appurtenances. No claim is made for an existing use in respect of that area. According to my understanding of how the balance of the site is being and will be operated by Collex, waste will not be treated outside the waste transfer terminal building. It will be packed into containers within the building and the containers will be transferred from the building by forklift to the hardstand area on Lot 201 ready for loading onto the rolling stock, or directly to the rolling stock depending upon the availability of wagons, for transportation to Crisps Creek Intermodal Facility by rail transport.

40 Mr Brzoson refers back to the activities carried on by earlier users of the land before the period when FCL managed the site for FreightCorp. It is not apparent how these activities can be relevant. The critical time for the assessment of the use of Lot 201 for any lawful purpose is immediately before the coming into force of LEP 2000. In the context of s 106, if the land was being used “for a lawful purpose” at that time then the enquiry moves to the effect of the environmental planning instrument that came into force on that use. I am satisfied that the use immediately before LEP 2000 came into force was for a lawful purpose as part of a railway undertaking which had the benefit of the exemption flowing out of the Model Provisions through LEP 43. No consent was required to carry on that use notwithstanding that, with limited exceptions, LEP 43 provided that no development could be carried on without consent.

41 The real issue therefore becomes whether a change in the nature or category of freight has the effect of changing the use where there is a consistent and continuing use of containers for the purpose of transportation. The applicant places significant weight upon the assertion that as the freight activities have not been the subject of environmental assessment the Court should somehow take a narrow approach to the categorisation of the prohibited use. The extent of environmental harm is not an element of characterisation of the use except in so far as those impacts are descriptive of or form part of the activity.

42 Mr Brozson raises a distinction between the proposed development designed solely and specifically to deal with putrescible waste and the continuance of the pre existing activity that involved transferring a variety of goods and materials from the mode of road transport to rail transport. This argument gains support from the line of authority commencing with the High Court in Woollahra Municipal Council v Banool Developments PtyLimited (1973) 129 CLR 138 where in addressing the effect of s 309 of the Local Government Act 1919, that then applied, the purpose should be regarded as specific rather than general. However in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305, McHugh JA, as he then was, sounded a warning that the principles developed in relation to existing use reconcile the rights of owners with the conflicting objectives of the town planning legislation “by refusing to categorise an ‘existing use’ so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless.” McHugh JA concluded as follows at p 310:-

Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities transactions or processes carried on at a relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.

43 The use before and after the making of LEP 2000 remained in a broad sense a railway undertaking but in the context of a loading and unloading facility with storage of containers pending transportation. I am not persuaded that the subsequent confinement of the nature of the material consigned in the containers changed the underlying use.

44 I agree with Mr Brzoson that the characterisation cannot be so broad as to allow the use of the site for a wide range of activities (whether hazardous and offensive or otherwise) that are justified solely by reason of the ultimate transport by rail. However in the present instance the separate activity in relation to the transfer and management of the waste itself takes place within the waste transfer terminal building under the authority of the Clyde Act. The waste is delivered on to the balance of Lot 201 solely for the purpose of transportation and if necessary storage pending the availability of a train to remove it to Woodlawn. There is no distinct or separate element in the activity on the balance of Lot 201 within the Clyde Marshalling Yards that would justify a separate or distinct description of the use as being for the purpose of the waste management industry.

45 The applicant further argues that as the development on the balance of Lot 201 is part of a project that comprises development deemed to be State significant development by virtue of s 5 of the Clyde Act it requires development consent as State significant development. Section 76A(8) of the EP&A Act provides that if a project comprises development part of which is State significant development, all other development comprised in the project is taken to be State significant development. Section 5(1) of the Clyde Act provides:-

1) The development that may be carried out under the development consent is taken to be State significant development that is integrated development, subject to section 9.

46 Section 107(1) of the EP&A Act provides as follows:-

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

47 Section 76A was first introduced to the EP&A Act in 1997 and amended in 1998, 1999 and 2001. The applicant submits that there has been an implied repeal of s 107 by the later legislative amendments to the EP&A Act by the provisions relating to State significant development introduced by the insertion of s 76A. However the legislative history shows the Environmental Planning and Assessment Amendment Act 1997 No 152 omitted the whole of Part 4 and a new Part 4 was inserted. Section 107(1) was re-enacted at the same time s 76A was first introduced. Accordingly there can be no implied repeal as the amendments were made to both sections at the same time. Section 106 was re-enacted in an amended form only to the extent that it referred to different numbered sections.

48 The applicant has referred to the decision of Re Applications of Shephard [1983] 1 NSWLR 96 when Yeldham J said the following at p 108:-

The question that must be answered as is made clear in the joint judgment to which I have referred earlier in Rose v Hvric (1963) 108 CLR 353 is whether the contrariety between the earlier and later enactments is such that effect cannot be given to both at the same time. It must also be borne in mind that repeal by implication should not be lightly inferred and “should not be found unless it is inevitable and unless the statute is clearly and indisputably contradictory and contrary to the former.”

49 In my opinion this decision bears no relevance to the applicant’s argument. Re Applications of Shephard dealt with two statutes and whether the provisions of the later statute contradicted the earlier. In this instance the applicant’s argument is based on two sections of the same Act where s 107 allegedly contradicts s 76A. It is hardly a contradiction. The effect of s 76A requiring consent in relation to certain development, including State significant development, has no bearing on the operation of s 107 which arises only where development has become prohibited. Furthermore, s 107 requires that except where otherwise expressly provided nothing in the Act prevents the continuance of an existing use as defined. Moreover s 76C makes it clear that Division 1 of Part 4, that contains s 76A, is subject to other provisions of the EP&A Act unless express provision is made to the contrary. Unlike s 109 which effectively removes the requirement in any environmental planning instrument that operates so as to require consent to be obtained, s 107 expressly preserves an existing use except where “expressly” provided in the Act. It goes further to state without reservation that nothing in the Act or an environmental planning instrument prevents the continuance of the use.

50 It is difficult for me to understand the relevance of the argument relating to the implied repeal of s 107 in any event. What is significant however is that if s 76A(8) has the effect claimed for it by the applicant then the development carried on in the balance of Lot 201 outside the waste transfer building could be permissible with consent and therefore outside the ambit of s 107 as prohibited development. That is not as a consequence of any repeal implied or otherwise. It simply removes the protection afforded to prohibited development by s 107 and places what would otherwise be prohibited development into a separate and different category of development, namely development permissible with consent of the Minister. Section 76A(3) provides:-

Development that may not be carried out except with development consent comprises two types, namely:

(a) …

(b) State significant development.

51 Section 76A(7), (8) and (9) deal with State significant development as follows:-

(7) State significant development
State significant development is:

(a) development:

(i) that is declared by a State environmental planning instrument or a regional environmental plan to be State significant development, and

(ii) that may be carried out with development consent, or

(b) particular development, or a particular class of development:

(i) that, under an environmental planning instrument, may be carried out with development consent, and

(ii) that, in the opinion of the Minister, is of State or regional significance, and

(iii) that is declared by the Minister, by notice in the Gazette, to be State significant development, or

(c) development that is proposed to be carried out in accordance with a development application that the Minister has directed, under section 88A, to be referred to the Minster for determination, or

(8) If:

(a) a project comprises development part of which is State significant development, all other development comprised in the project is taken to be State significant development, and

(b) but for this provision, part of State significant development would be subject to Part 5, this Part applies to the exclusion of Part 5 and the development may be carried out with development consent, and

(9) The Minister is the consent authority for State significant development.

52 In Government Gazette No. 89 published on 25 May 2001, the Minister made a declaration pursuant to s 76A(7)(b) that the development of a Container Packing Station in the Clyde Marshalling Yard area be State significant development. The declaration was made on the basis that the development for the Container Packing Station may be carried out with development consent under an environmental planning instrument in accordance with s 76A(7)(b)(i). Following the decision of Bignold J in Drake the declaration of the Minister ceased to operate because the requirement in s 76A(7)(b)(i) was not satisfied.

53 The issue therefore is whether s 5 of the Clyde Act operated from 8 December 2003 (the date of assent) so that the use of the whole of Lot 201 as one project became in fact State significant development for the purposes of s 76A(8)(a). If it did, and therefore became permissible with the consent of the Minister, as prohibited development referred to in s 76A(8)(c), by applying the reasoning adopted by Lloyd J in Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363 at [171] that an existing use can be lost upon the coming into force of an environmental planning instrument which has the effect of making such use permissible (albeit with consent), then the existing use entitlement in respect of the use of the balance of Lot 201 would have ceased on 8 December 2003 by the operation of s 76A(8)(a) and (c).

54 There has been no declaration by the Minister in respect of any part of Lot 201 under s 89 for the purpose of s 76A(7)(d). For the applicant to succeed it must rely on the operation of s 76A(8)(c) to the effect that the use of that part of Lot 201 outside the waste transfer terminal building characterised as prohibited development may be carried out with development consent.

55 The development rejected by Bignold J in Drake, described as a waste transfer terminal is “taken to be” State significant development by dint of s 5 of the Clyde Act. If the waste transfer terminal thereby became State significant development, in fact, the use of the balance of Lot 201 then is “taken to be” State significant development per force of s 76A(8)(a). As such, being otherwise prohibited, the development may be carried out with development consent.

56 Significantly the words “taken to be State significant development” appear in s 5 of the Clyde Act and in s 76A(8)(a) of the EP&A Act. In their respective context I believe that the words have same meaning. In either case they have the effect that the development is deemed to be State significant development. Under the Clyde Act the waste transfer terminal is deemed to be State significant development, while the effect of s 76A(8) is to deem the balance of the Collex operation on the balance of Lot 201 to be State significant development as part of the same total “project” comprising the delivery, management, packing, storing and transportation of waste collected from different parts of Sydney for ultimate disposal at Woodlawn.

57 The term “taken to be” picks up the classification of State significant development and applies it to the subject developments so that the provisions of the EP&A Act in respect thereof apply to each of them. In the case of the railway operation it particularly has the added consequence of making it development (otherwise prohibited development) that may be carried out with development consent and the Minister is the consent authority. The phrase is a convenient device used to apply the provisions relating to State significant development without restating them. It is used to create a statutory fiction for the purpose of extending the meaning of development which is not properly designated as State significant development (Hunter Douglas Australia v Perma BlindsPty Limited (1976) 122 CLR 49 at 65 and R v Hughes (2000) 202 CLR 535 at [24].

58 Accordingly for the above reasons I find that the Collex development in that part of Lot 201 outside the waste transfer terminal is development permissible with consent as if it was State significant development.

59 It follows therefore that the effect of applying the decision of Lloyd J in Dosan would be that the existing use ceased when assent was given to the Clyde Act.

60 In Dosan both parties proceeded on the assumption that if the use on the land had become relevantly permissible, existing use rights ceased to apply. Although the point was not argued, Lloyd J considered whether the assumption was supported by the EP&A Act. His Honour recognised that the planning instrument which made the use permissible could not require further consent to be obtained for the continuance of the use if it was previously lawful as an existing use (see s 109). If the existing use remained it could be relied upon where the user was seeking approval to change the existing use to another prohibited use. The latter advantage could not accrue in the present case because s 109 has no effect except where a planning instrument introduces the requirement for consent. It does not apply where the requirement for consent comes from another source such as s 76A(8).

61 Lloyd J identified the following matters to suggest the existing use is preserved at [159]:-

1. It is arguable that as the primary purpose of existing use rights is to provide an exception to a current prohibition, it is axiomatic that land ceases to enjoy those rights when the prohibition is lifted, however in many cases there is the capacity for existing rights to pave the way for other prohibited uses pursuant to s 108 and this may often be their most valuable attribute.

2. Statutory provisions designed to protect and preserve existing use rights should be liberally construed.

3. The Act expressly provides only one way for existing use rights to be lost, namely by authority of s 80A(1)(b) whereby a condition in a consent may require that existing use rights be surrendered.

4. s 107(2)(e) recognises that an existing use can be abandoned but does not provide that it ceases to be an existing use.

5. There is no express provision that where a use becomes permissible under a later planning instrument it ceases to be an existing use.

6. It cannot therefore be said that the existing use is “extinguished” by the force of such an instrument but it may cease to fall within the definition in s 106.

7. The somewhat ambiguous phrase “the use of a building or work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument” does not explicitly require that the use must still be a prohibited one at the date upon which its existing use status is being asserted.

8. The words of s 107 do not suggest that the existing use loses its status as an existing use when a planning instrument no longer purports to prevent that continuance.

62 Lloyd J at [165] then identified those considerations which seemed to suggest to him that an existing use of land loses its protection when the use becomes permissible under a subsequent environmental planning instrument:-

1. The creation of an existing use is dependent upon the planning instrument. There appears to be no reason why a planning instrument could not operate conversely, so as to make a particular use no longer a prohibited use.

2. Such a step would not derogate from the incorporated provisions in s 108(3) as they would continue to operate on existing uses as defined in s 106.

3. s 109 must apply as much to uses which were lawful only by virtue of s 107 as well as to uses which commenced with consent or without the necessity for consent. It would be anomalous if the existing use could be controlled by ss 107 and 108 on the one hand and s 109 on the other hand, with different consequences. The scheme of Part 4 Division 10 of the Act is to allow a use to fall within either the former or the latter.

4. If existing use rights are properly seen as “a transitional derogation” (per Kirby P in Boyts at 51) in nature, there is little planning law or private justification for continuing to recognise them after the prohibition has been lifted. At that point the owner enjoying existing use rights is in the same position as all landowners conducting lawful uses and there seems to be no policy reason why he or she should enjoy superior protection.

5. Recognising the effect of s 108 as providing a benefit to the owner as well as the public because it facilitates transition from less to more desirable prohibited uses, it is unlikely that the legislature would have intended (by s 108) that on all land which had at some time enjoyed the benefit of an existing use, the owner should ever after be able to change a permissible use to a prohibited use. Such an outcome would be highly detrimental to the orderly enforcement of planning controls in the State.

63 Although the parties made the assumption that the existing use rights were lost, Lloyd J nevertheless embarked on a closely reasoned explanation of his decision. There is no rule of law that requires me to follow his decision but I should do so as a matter of judicial comity unless I am strongly persuaded that it is wrong. I do have some reservations about the outcome determined by Lloyd J as it appears to set aside what I perceive to be the commonly assumed notion that existing use rights are generally maintainable in the face of subsequent changes in the planning regime. This notion of maintaining existing entitlements is reinforced by s 109. That section also allows a use for a lawful purpose to be continued without obtaining development consent notwithstanding the subsequent introduction of a requirement for consent. However I do not need to take my concern any further at this time because the facts in Dosan make the decision distinguishable for present purposes.

64 One of the essential criteria for the subject development to be taken to be State significant development is that it remains prohibited under an environmental planning instrument. Lloyd J placed considerable emphasis on the fact that he was unable to see any reason why the protection afforded by the combined effect of s 106 and s 107 for a use prohibited under a planning instrument should not be the lost following coming into force of an environmental planning instrument which has the effect of making such use permissible.

65 In the present case there is no amendment to an environmental planning instrument. The requirement for consent comes, not from a change in the provisions in the LEP, as was the case in Dosan, but as a consequence of a change of circumstances whereby the land is taken to be used for the purpose of State significant development.

66 Section 107 is unequivocal in its terms that nothing in the Act or an environmental planning instrument prevents the continuance of an existing use except where expressly provided in the Act. The word “continuance” must be given its ordinary meaning of “to remain in force” or “the going on with lasting effect.” It is not relevantly otherwise provided in s 76A that an existing use cannot be continued when existing development becomes State significant development.

67 The definition of existing use in s 106 is not limited to the period while the use remains prohibited. It addresses the instances in time immediately prior to the making of an environmental planning instrument and the date when the instrument comes into force. If the criteria in s 106(a) is satisfied at the outset then the use becomes and thereafter remains an existing use by definition, irrespective of what occurs subsequently, unless the use is abandoned or the existing use is changed to another use in accordance with s 108 and the incorporated provisions. Section 107 confirms this unequivocally.

68 The amendments to the Act introduced by s 76A were made at the same time as s 106 and s 107 were re-enacted in the new Part 4. The legislature must be assumed to be have intended the result I have adopted.

Conclusion

69 The consequence of applying the above reasoning to the applicant’s case and the facts is that I determine the use of Lot 201 outside the waste transfer building is an existing use and may be continued by the authority of s 107 of the EP&A Act. The evidence does not prove intensification of or change of the use as contemplated by s 108. Accordingly consent is not required. The application will be dismissed.

70 The question of costs is reserved. The exhibits may be returned.