Shah Friends Pty Ltd v Cumberland Council

[2022] NSWLEC 1537

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shah Friends Pty Ltd v Cumberland Council [2022] NSWLEC 1537

Hearing dates:

11 and 12 August 2022

Date of orders:

30 September 2022

Decision date:

30 September 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The development control order issued by Cumberland Council on 22 December 2021 pursuant to s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) in terms of a stop use order, Order Number 1 in the table to Part 1 of Schedule 5 of the Act, is modified and the terms of the modified order are set out in Annexure A.

(3) Exhibits B-E are returned, and the remaining exhibits are retained.

Catchwords:

APPEAL – development control order – stop use order – whether current use of the premises is authorised by earlier development consent – purpose of use approved by development consent – purpose of use currently carried out on the site – acoustic impact of current use – whether discretion to issue an order should be exercised

Legislation Cited:

Auburn Local Environmental Plan 2000

Auburn Local Environmental Plan 2010

Auburn Planning Scheme Ordinance 1970

County of Cumberland Planning Scheme Ordinance 1951 cl 32

Cumberland Local Environmental Plan 2021

Environmental Planning and Assessment Act 1979 ss 4.65, 4.70, 8.18, 9.34, Sch 5

Government Information (Public Access) Act 2009

Land and Environment Court Act 1979 s 39

Protection of the Environment Operations Act 1997

Standard Instrument - Principal Local Environmental Plan

State Environmental Planning Policy (Infrastructure) 2007 cl 121

State Environmental Planning Policy (Transport and Infrastructure) 2021 cl 2.153

Cases Cited:

Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107

F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306

J & J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223; [2002] NSWCA 259

Lederer v Sydney City Council (2001) 119 LGERA 350; [2001] NSWLEC 272

Maroun Holdings Pty Ltd v Kiama Municipal Council [2020] NSWLEC 1013

McCudden v Cowra Shire Council (2016) 216 LGERA 219; [2016] NSWLEC 14
Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] ALR 277

Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305

Texts Cited:

New Collins Dictionary

Category:

Principal judgment

Parties:

Shah Friends Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
N Weinberger (Solicitor) (Applicant)
N Hammond (Respondent)

Solicitors:
Weinberger Lawyers (Applicant)
Cumberland Council (Respondent)

File Number(s):

2022/15004

Publication restriction:

No

Judgment

1. COMMISSIONER: Between Parramatta Road and the M4 corridor in Auburn is an enterprise corridor comprising a mix of uses, including bulky goods stores, retail uses and commercial endeavours. At 187 Parramatta Road, Auburn, Shah Friends Pty Ltd (Shah) is one of the tenants and purchases, sorts and sells scrap metal. On 22 December 2021, Cumberland Council (the Council) issued a stop use order that requires Shah to cease use of the site as a waste or resource transfer station (the Order). Shah appeals against the Order pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The Order was issued pursuant to s 9.34(1) of the EPA Act, which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. Item 1 in the table allows a development control order to be issued as a stop use order where premises are being used for a prohibited purpose, or where development consent is required but has not been obtained. The Council says that the premises is operating as a waste or resource transfer station, for which development consent is required and has not been obtained. Shah instead relies upon a development consent granted in 1979 (the 1979 development consent) for “metal manufacturing, foundry, general engineering and metal pressing”, and says that the current use of the site is in accordance with that consent. The Council says that the current use of the premises operated by Shah is not for the purpose of the use authorised by the 1979 development consent.

3. For the reasons that are set out below, I find that the current activities on the premises are not for the purpose of the use authorised by the 1979 development consent. I accept the Council’s position that the current use is for the purpose of a waste or resource transfer station, for which development consent is required and has not been obtained. In circumstances where the current use is causing actual amenity impacts on neighbouring developments that is not contradicted by any other acoustic evidence, the Order should remain in place, subject to modifications proposed by the Council.

The terms of the order and the power of the Court on appeal

4. Item 1 of Pt 1 of Sch 5 to the EPA Act allows a stop use order to be issued to the owner of a building, or the “person using the premises or building” if the premises are being used for a prohibited purpose or for a purpose which a planning approval is required but has not been obtained. It also allows a stop use order to be issued if the premises are being used “in contravention of a planning approval”. A “planning approval” includes a development consent.

5. The terms of the Order are as follows:

“1. Stop the use of the premises as a waste or resource transfer station.

2. Remove all waste materials/items and stockpiles being stored at the premises associated with the use of the premises as a waste or resource transfer station and dispose of at an appropriately licensed waste facility.”

6. The reasons given for the Order are as follows:

“1. An inspection by Council Officers 4 March 2021 revealed the premises were being used for the receipt, sorting, storage and subsequent loading and transporting of waste.

The use of the premises in such a manner falls within the definition of a waste or resource transfer station pursuant to the Cumberland Local Environmental Plan 2021.

Note: waste or resource transfer station means a building or place used for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport.

The undertaking of any development which is defined as a waste or resource transfer station is a development which is prohibited within the premises B6 Enterprise Corridor zoning pursuant to the Cumberland Local Environmental Plan 2021.

2. A search of Council's records indicates the current use is not operating under a valid Development Consent. The development is therefore unlawful and in breach of the Act.

3. Council has received a number of complaints regarding the current use at the premises including the level of noise generated by the activities carried out on site.

4. The amenity of the occupants and adjoining properties may be affected which requires assessment under the Environmental Planning and Assessment Act, 1979.

5. The health and safety of occupants needs to be assessed in accordance with the Building Code of Australia.

6. The development is being carried out in contravention of provisions contained in the Environmental Planning and Assessment Act, 1979.

7. It is the view of Council that the unauthorised development is not in the public interest.”

7. In hearing the appeal, the Court has all the functions and discretions of the Council in determining whether the order should be issued. Section 39 of the Land and Environment Court Act 1979 (LEC Act) provides:

39 Powers of Court on appeals

...

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal...

8. The Court therefore exercises the power pursuant to s 9.34(1) of the EPA Act, which provides:

9.34 Orders that may be given (cf previous s 121B)

(1) The development control orders that may be given under this Act are as follows—

(a) general orders in accordance with the table to Part 1 of Schedule 5,

9. In addition, s 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order. They are as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

The site and its planning history

10. The hearing commenced with a site inspection. The site has a street address of 187 Parramatta Road, Auburn and has frontages to Parramatta Road, Stubbs Street and Adderley Street West. The site is subject to four leases for occupation, including a lease to Shah for part of the site. That part of the site that is leased and occupied by Shah is shown by the orange marking in Figure 1, and are the premises the subject of the Order (the Premises).

11. The driveway at the rear of the Premises and on the site is a shared driveway, shown as shared space in Figure 1, which provides access to each of the leased areas of the site. The area of the site with frontage to Adderley Street is occupied by Sydney Copper Scraps, which operates a metal recycling facility that purchases, sorts and sells scrap metals.

12. On the Premises is a business trading as Western Sydney Scrap Metal, which involves the purchase, gathering and sorting of ferrous and non-ferrous metal scraps to sell and export overseas.

The current planning controls

13. The site is zoned B6 Enterprise Corridor pursuant to the Cumberland Local Environmental Plan 2021 (CLEP), which commenced on 5 November 2021.

14. Waste or resource management facilities are a nominated prohibited use in the B6 Enterprise Corridor zone, pursuant to the CLEP. Similarly, “industries” are a nominated prohibited use, other than light industries. As such, if a foundry is considered an “industry”, it is prohibited on the site. An “industry” is defined in the CLEP as:

industry means any of the following—

(a) general industry,

(b) heavy industry,

(c) light industry,

but does not include—

(d) rural industry, or

(e) extractive industry, or

(f) mining.

15. “General industry” means “a building or place (other than a heavy industry or light industry) that is used to carry out an industrial activity”, and industrial activity is defined in the CLEP as follows:

industrial activity means the manufacturing, production, assembling, altering, formulating, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, transforming, processing, recycling, adapting or servicing of, or the research and development of, any goods, substances, food, products or articles for commercial purposes, and includes any storage or transportation associated with any such activity.

16. The definition of waste or resource management facilities includes a “waste or resource transfer station”. The definition is found in the Standard Instrument - Principal Local Environmental Plan, and replicated in the CLEP as follows:

waste or resource management facility means any of the following—

(a) a resource recovery facility,

(b) a waste disposal facility,

(c) a waste or resource transfer station,

(d) a building or place that is a combination of any of the things referred to in paragraphs (a)–(c).

17. The definition of a waste or resource transfer station is similarly found in the CLEP as follows:

waste or resource transfer station means a building or place used for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport.

18. Notwithstanding that waste or resource management facilities are a nominated prohibited use in the zone, a waste or resource transfer station is nonetheless permitted with development consent in the zone pursuant to cl 2.153(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), which commenced on 1 March 2022 and provides:

(2) Development for the purposes of a waste or resource transfer station may be carried out by any person with consent on—

(a) land in a prescribed zone, or

(b) land in any of the following land use zones or equivalent land use zones—

…

(ii) B6 Enterprise Corridor,

…

19. Regardless of the current controls found in a planning instrument, s 4.70 of the EPA Act preserves a development consent. It provides:

4.70 Saving of effect of existing consents (cf previous s 109B)

(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

(2) This section—

(a) applies to consents lawfully granted before or after the commencement of this Act, and

(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and

(c) has effect despite anything to the contrary in section 4.66 or 4.68.

(3) This section is taken to have commenced on the commencement of this Act.

The historic planning controls

20. The site was initially zoned “living area” pursuant to the County of Cumberland Planning Scheme Ordinance 1951 (CPSO), which commenced by proclamation in the Government Gazette in 1951. “Generating works; warehouses; bulk stores; industries other than local light industries; mines; institutions” were all uses that were prohibited in the zone. “Local light industries” were permissible with development consent in the zone.

21. On 18 September 1970, the Auburn Planning Scheme Ordinance 1970 (APSO) commenced. In accordance with the APSO, the site was zoned 4(b) Light Industrial, and industries including metal foundry were prohibited in the 4(b) zone.

22. However, adjacent to the zone in which the site was located was the 4(a) General Industrial zone, in which metal founding was permissible with development consent.

23. The Auburn Local Environmental Plan 2000 (ALEP 2000) commenced on 27 October 2000, in which the site was zoned 4(c) Industrial Enterprise. “Industries” were permissible with consent in the zone.

24. The Auburn Local Environmental Plan 2010 (ALEP 2010) commenced on 29 October 2010, and the site was zoned B6 Enterprise Corridor. “Industries” other than “light industries” became prohibited in the zone, which is consistent with the CLEP. The definition of “industry” in the ALEP 2010 was identical to that currently contained in the CLEP.

25. Prior to the commencement of the SEPP TI on 1 March 2022, the equivalent provision permitting a waste or resource transfer station with development consent in the B6 Enterprise Corridor zone was found in cl 121(2) of the former State Environmental Planning Policy (Infrastructure) 2007 (SEPP (Infrastructure)), which commenced on 21 December 2007.

26. As such, although there has been a change in the applicable planning instruments, from the time that the land was zoned B6 Enterprise Corridor on 29 October 2010, the use of the site for the purpose of a waste or resource transfer station was permissible with development consent, and the use of the site for “industry” was prohibited (other than “light industry”).

The history of approvals for the site

27. A foundry was established on the site in around 1936, prior to the commencement of the CPSO. On the commencement of the CPSO, cl 32 operated to permit the continued use of a place for an existing use.

28. On 8 December 1954, the Council of the Municipality of Auburn approved building application 559/54 for additions to a factory at the site. In July 1960 it approved building application 694/64 for alterations and additions for “general engineering purposes”. Following this, on 14 July 1964, the Council of the Municipality of Auburn granted building permit 459/64 to permit buildings for the purpose of industrial development to be erected on the site. During the period of each of these approvals, the site was zoned ‘living area’ under the CPSO.

29. Following the commencement of the APSO, the development application for the 1979 development consent was lodged on 27 July 1979. The description of the proposed development was “metal manufacturing, foundry, general engineering and metal pressing”. It was granted by the Council of the Municipality of Auburn on 6 September 1979, notwithstanding that industries including metal foundry were prohibited in the 4(b) zone in which the site was located (although it may have been permissible as an existing use). Nevertheless, the 1979 development consent has never been challenged and must be taken to be valid unless and until declared otherwise by the Court (see F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306).

30. On 28 March 1980, the Council of the Municipality of Auburn granted building permit 104/80 for the construction of a new factory building addition on the site. Condition 27 of the permit references the 1979 development consent but there is no indication that the use of the premises changed from a foundry.

The 1979 development consent

31. The development application for the 1979 development consent described the use of the premises on 21 November 1966 as “as per part 5 above, the foundry was established in 1936” and that the use of the premises on 26 July 1979 was “metal manufacturing, foundry, general engineering and metal pressing”. The development application described the machinery installed as “lathes, metal planes, milling, grinding and general engineering machine” and that the machinery to be installed would be “replacing old machines with new ones plus 20 power presses and 2 metal guillotines and new induction melting machines”.

32. The development application was accompanied by plans that set out the layout for the site, including areas marked as “existing factory – machine shop”, “existing foundry”, “proposed new foundry area”, and “proposed new pressing shop”. There is also a weighbridge shown on the driveway that runs through the site, as well as two areas for car parking.

33. Condition (d) of the 1979 development consent required that the layout of the premises and the size of the proposed buildings and works shall be in accordance with the plan submitted and marked as drawings Job 79/130 1 to 4 and shall form part of the permit.

34. The parties agree that, by the grant of the 1979 development consent, the use that was permitted by that consent is “metal manufacturing, foundry, general engineering and metal pressing”.

35. The word “foundry” is not defined in any of the planning instruments. The expert town planner engaged by Shah, Mr Philip Bull, defines foundry as “a place where metal castings are produced”, based on the New Collins Dictionary. This definition is not disputed by the Council.

The current use of the Premises

36. Mr Syed Raza Baqir is the sole director of Shah, and gives evidence that the business at the Premises “involves the purchase and sale, gathering and sorting of ferrous and non-ferrous metal scraps and copper to export overseas”. His evidence is that the Premises processes around 20 tonnes of scrap metal each week, and 3-4 tonnes of other materials such as batteries or tyres each weekday. His evidence is that the scrap metal is sorted and then sold to metal foundries and other businesses.

36. Mr Bull’s evidence is that the use “involves the purchase of metal from various sources and the sorting of that metal into type, some processes such as stripping plastic off wire and then placing that metal in containers and exporting that material.” Mr Bull points out that they do not accept metals from the public, and, unlike waste facilities, they purchase the metals and do not charge a fee for disposal.

37. From the notes from the inspections carried out by council officers, and from the site inspection, it was observed that scrap metal and other waste was transported to the Premises by customers, who park in the area marked for car parking and unload their vans or trucks into skip bins placed within the car parking area. The file note of Ms Tomic dated 3 March 2021 records observations that the customers unload the materials into the skip bins by “throwing them into the bins”. The skip bins are then transported into the warehouse on the Premises where their contents are sorted. At the site inspection carried out at the commencement of the hearing, it was observed that there are various stockpiles within the building located on the Premises, including batteries loaded onto pallets. Once the material is sorted, it is loaded into shipping containers and exported overseas, and any waste is disposed of. The operating hours of the Premises are 7am to 5pm Monday to Friday, and 7am to 2pm on Saturdays.

38. The current use of the Premises commenced by Shah in February 2020, following their occupation of the Premises under a lease commencing 14 February 2020. The landlord is P&C Consulting Pty Ltd. The Premises are part of the site on which there are multiple businesses trading, including Sydney Copper Scraps, which also operates a metal recycling facility on the site.

39. Prior to entering into the lease, Mr Baqir visited the office of the Council and made enquiries concerning the 1979 development consent. He was advised by a council officer to find historical information concerning consents for the site, and that he “may be able to trade under existing use rights without lodging a DA. You should make a GIPA application to find any historical information about the premises”. However, a request made pursuant to the Government Information (Public Access) Act 2009 did not return any response. A representative of the landlord, Mr Morsello, then advised Mr Baqir that he could simply start trading “and rely on continuing a use which is consistent with the existing use rights” (Ex A). Mr Baqir’s evidence is that he commenced the current operation of the Premises as a result of “advice both from Council and my landlord”.

Expert evidence

41. Expert opinion evidence on town planning matters was given in a joint report by Mr Philip Bull, a town planner engaged by Shah, and Ms Brittany Mould, a town planner employed by the Council.

42. Mr Bull opines that the current use of the Premises is consistent with the activities covered by the 1979 development consent “in as much as a foundry would buy metal, process it, sort it into kind, melt it, cast it and then sell it to someone”. He considers that the current use is the continuation of an existing use that has de-intensified, as it no longer includes the melting and casting of metal.

43. Mr Bull opines that the current use is for “industrial activity” which, according to him, is permissible with consent. However, contrary to his position, “industrial activity” is a type of “general industry” which is a sub-set of “industries” which are prohibited on the site, unless the “industrial activity” falls within a “light industry”, which are permissible with development consent.

44. Ms Mould instead opines that the current use of the Premises is not consistent with the 1979 development consent, and that the current use is instead for the purpose of a “waste and resource transfer station”.

45. Mr Bull and Ms Mould also give much commentary in the joint report that is in the nature of submissions on the appropriateness and validity of the Order. That commentary is taken into account in the course of my consideration of the submissions of the parties.

The circumstances leading to the issue of the order

46. In February 2021, the Council started receiving complaints concerning the use of the Premises and its noise impact.

47. The first complaint was received from the landlord of 10 Stubbs Street, whose tenant had indicated that the noise was interfering with their business and that they would not continue their tenancy due to the noise. The noise was described as “horrendous and is all day”, and that it “has been going on for a month or two”.

48. A complaint from a second person was received on 2 March 2021, on behalf of the occupants of the units at 7 Stubbs Street located across the road from the Premises. The complaint is described as follows:

“Customer advised that he has industrial deafness and still finds the noise generated by Western Sydney Scrap Metal to be unreasonable. He advised that the noise occurs from 8am and continues throughout the day and described that it is coming from the movement/disposal of metal at the site, specifically the ‘throwing of metal into bins’. He has major concerns about the staffs hearing and feels that SafeWork should be notified.”

49. On 3 March 2021, a council officer inspected the Premises and noted that the concerns raised by the complaints were substantiated. Specifically, Ms Tomic noted that she “arrived at the site and parked out the front where the activities being carried out were both visible and audible”. She made the following notes:

“1. A 15 minutes [sic] noise assessment was undertaken from my vehicle which was parked outside of 4 Stubbs Street. This confirmed that the activities from the site were significantly audible with both my car windows open and closed;

2. It appeared that scrap metal and other waste was transported to the site by external contractors. The contractors park at the front of the site and empty their vans/trucks into skip bins placed in front of their vehicle. The contractors unload the scrap metal into the bins by throwing them into the bins – this activity is generating a significant amount of noise;

3. The skip bins are then transported into a warehouse where the waste is sorted/held. Again, this activity generates more noise – including loud thuds and bangs.”

50. The complaints continued throughout March and on 22 March 2021 the Council issued a Notice of Intention to give an order. The proposed order was a stop use order, requiring Shah to stop the use of the premises as a waste or resource transfer station, and remove all waste materials/items and stockpiles being stored at the premises associated with that use.

51. Notwithstanding the Notice of Intention to give an order, the complaints continued in June 2021, and in August 2021 a complaint was made by a third complainant with respect to the noise from the premises.

52. On 20 August 2021, Ms Tomic again attended the Premises and observed that the noises heard back in March were ongoing. Her notes are as follows:

“The noises…include loud thuds, beeping forklift, reversing trucks and metal being moved around facility. There have been several attempts made to discuss this issue with the owner however there appears to be NO action taken.”

53. Complaints about the noise from the Premises continued to be made over August, September and December 2021, before the Order was issued on 22 December 2021. Following the issue of the order and responding to a question about an extension of time, the first complainant described the effect that the noise had on the tenant in the following way:

“The problem is that my existing tenant is suffering because of the noise every single minute of every single day and for them to conduct normal business telephone conversation from within their offices, is near impossible.”

54. In between the issue of a Notice of Intention to Give an Order on 22 March 2021, and the issue of the Order on 22 December 2021, the CLEP commenced. However, there was no change to what was permissible on the site. As set out above, the site remained zoned B6 Enterprise Corridor and the use of the site for “industry” was prohibited (other than “light industry”), and, pursuant to the SEPP TI, the use of the site for the purpose of a waste or resource transfer station was permissible with development consent.

55. In both the Notice of Intention to Give an Order, and the Order, the reasons for the order omit to acknowledge that the use for the purpose of a “waste or resource transfer station” was in fact permissible with development consent on the site pursuant to either the SEPP (Infrastructure) (prior to 1 March 2022) or the SEPP TI (following 1 March 2022).

56. The Order was issued in the same terms as the Notice of Intention to Give an Order, but reason number 1 was amended to identify and refer to the CLEP instead of the ALEP 2010.

The applicant’s position that the order should be revoked

57. Shah’s position is that the order should be revoked on the basis that it was wrongly founded, and that the 1979 development consent authorises the current use of the Premises. Shah therefore says that the statutory basis for the issue of the order is not met. Even if the statutory basis for the issue of the order is met, Shah submits that there are various circumstances that ought to persuade the Court not to issue the order, including the absence of objective acoustic evidence, the absence of any enforcement action against another use of a similar nature occurring on the same site, and the failure of the Council to indicate that the use is permissible with development consent in the reasons for the order.

58. Specifically, Shah submits that the current activities on the Premises are the same activities that were approved by the 1979 development consent, and that the nature of the current use of the Premises is for the purpose of metal manufacturing, foundry, general engineering or metal pressing. Shah says that the use approved in the 1979 development consent naturally encompasses “the purchase of metals (or other items containing mostly metal), the sorting of those items and subsequent sale of metals” in the same manner that is currently undertaken at the Premises. Shah relies on the evidence of Mr Bull that the current use of the Premises is consistent with the activities covered by the 1979 development consent “in as much as a foundry would buy metal, process it, sort it into kind, melt it, cast it and then sell it to someone” and that the current use has de-intensified the use of the Premises, as it no longer includes the melting and casting of metal. Shah says that the lack of operational requirements and specification of the approved use in the 1979 development consent means that the current use of the Premises can legally operate under the consent. Further, Shah submits that the disposal of waste from the Premises must be viewed with caution in circumstances where it is not a core use of the Premises for the purchase and sale of metals.

59. Shah submits that the change in the Council’s position to acknowledge that a “waste or resource transfer station” is permissible on the site with consent as a result of the SEPP TI means that the Council did not, in the Notice of Intention and the Order itself, give notice of the reasons as it is required to do. Shah submits that this is a jurisdictional fact that the Council was required to meet to issue the order, and is also a discretionary consideration in favour of allowing the appeal. Shah submits that the Council has “resiled from” the reasons given in the order, and the order is therefore “infected by legal error and must be set aside”.

60. In addition, Shah submits that in circumstances where the order was issued in response to a noise complaint, there is no objective evidence to support the extent of the noise impact and whether that noise emanated from the Premises or was actually a threat to public health or safety. Shah also says that the noise could be coming from the use of the site by Sydney Copper Scraps, against which the Council has not taken enforcement action. Shah submits that these are also matters that are discretionary considerations in favour of upholding the appeal.

61. Shah also points out that steps were taken by Mr Baqir to ensure that he did not require development consent to carry out the current use of the Premises, and that he relied on the advice of the landlord and the Council before commencing the current use of the Premises. Shah says that this too is a discretionary consideration that warrants allowing the current use of the Premises to continue.

62. Finally, Shah says that, rather than issue the order, the Council ought to have investigated the noise and taken action on the noise impacts under the Protection of the Environment Operations Act 1997, rather than requiring the use of the Premises to cease entirely.

The respondent’s position that the order should be modified

63. The Council’s position is instead that the current use of the Premises is for the purpose of a waste or resource transfer station, for which development consent is required but has not been obtained. It contends that the activities on the Premises are not for the purpose of the use authorised by the 1979 development consent. The Council submits that in circumstances where the use of the premises for that purpose is causing adverse acoustic impacts, a stop use order is appropriate.

64. The Council has proposed the modification of the stop use order, which alters the paragraph before the terms of the Order so that it refers to “development without development consent” rather than “prohibited development”. In the reasons of the modified stop use order, the text “and permitted with consent under clause 2.153 of the State Environmental Planning Policy (Transport and Infrastructure) 2021” is added to the end of paragraph 1 of the reasons, and reason 2 is now proposed to read:

“A search of Council’s records indicates the current use is not operating in accordance with a Development Consent. The development is therefore unlawful and in breach of the Act.”

65. The Council submits that the Order is nevertheless valid in the terms that it was issued. It says that the Council had the power to issue the Order on three possible bases, which are that the Premises are being used for a prohibited purpose, or without planning approval, or in contravention of a planning approval. Whilst the Council gave the Order in reliance on the first two bases, the Council now relies on the second and third bases. The fact that one of the two bases originally relied upon was incorrect does not invalidate the Order. The Council submits that, in circumstances where the Order has to be read as a whole, the reasons given make the basis for the issue of the Order clear, and give the recipient sufficient information to decide whether to accept the Order or to appeal. In support of these submissions, the Council relies on the Court of Appeal decision in J & J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223; [2002] NSWCA 259 at [46] and the decision of this Court in Lederer v Sydney City Council (2001) 119 LGERA 350; [2001] NSWLEC 272 at [163].

66. In any event, the Council points out that, even if the reasons given for the Order are not adequate, consistent with the approach of Craig J in McCudden v Cowra Shire Council (2016) 216 LGERA 219; [2016] NSWLEC 14, the order nevertheless persists so as to found the jurisdiction of the Court to entertain an appeal under s 8.18 of the EPA Act. The Council submits that, on the appeal, the Court has a broad discretion under s 8.18(4) of the EPA Act to consider whether to issue the order afresh, including to modify the terms of the Order or to substitute the Order for another order that the Council could have given.

67. The Council submits that the description of the current use of the Premises by Shah is not for the purpose approved by the 1979 development consent, but is instead for the purpose of a waste or resource transfer station. The activities described are “the purchase and sale, gathering and sorting of ferrous and non-ferrous material scraps and copper to export overseas”, and “the scrap metal is sold to metal foundries and other businesses which have a need for the metal”.

68. “Waste” is not defined in the EPA Act, but the Protection of the Environment Operations Act 1997 defines waste as follows:

waste includes—

(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or

(b) any discarded, rejected, unwanted, surplus or abandoned substance, or

(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or

(d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or

(e) any substance prescribed by the regulations to be waste.

A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered.

69. The Council submits that, based on the current activities on the Premises and the definitions of “waste or resource transfer station” and “waste or resource management facility”, the Court can be satisfied that Shah is carrying on a business that is properly characterised as a “waste or resource transfer station”. The Council points out that there is nothing in the definition of “waste or resource transfer station” or “waste or resource management facility” that excludes the purchase or the sale of the waste or resource.

70. The Council points out that this is in contrast to the use authorised by the 1979 development consent, which is for a foundry. The Council points out that a foundry is “a place where metal castings are produced”, and a “casting” is an object made by pouring molten metal or other material into a mould. The development application described it as “metal manufacturing, foundry, general engineering and metal pressing” and the machinery to be replaced at that time included lathes, metal planes, milling, grinding and general engineering machinery. The Council says that the 1979 development consent was for a metal manufacturing business where metal was melted, moulded and pressed using machinery, and then sold.

71. The Council submits that the current use of the Premises could not be properly characterised as being the same use as that approved by the 1979 development consent, as Shah is not using the Premises as a place where metal castings are produced or where metal is melted, cast and then sold. Specifically, there is no manufacturing taking place at the Premises, and the activities instead involve the receiving, processing and recycling/repurposing of waste items, some of which are sold once processed.

72. Accordingly, the Council submits that the current use of the Premises is for a purpose that requires development consent and development consent for that purpose has not been obtained. It says that the statutory basis for the issue of the Order has therefore been met, and the Order ought to be modified in the terms proposed by the Council so as to require Shah to stop use for the purpose of a “waste or resource transfer station” in circumstances where that use is causing acoustic impacts on businesses in the area of the Premises.

73. Additionally, the Council submits that the use of the car park area for the unloading of scrap metal into skip bins is not contemplated by the 1979 development consent, and that this is what is causing the primary noise impact on adjoining businesses.

74. The Council further submits that none of the other matters raised by Shah warrant the exercise of discretion in favour of revoking the order. It points out that the noise was investigated and identified as coming from the Premises, and that the evidence demonstrates that the noise is interfering with other businesses operating in the vicinity. The Council points out that a Notice of Intention to issue an order was issued to Sydney Copper Scraps in April 2022, so it is not true that enforcement action has not been taken against other similar land uses that are operating without development consent.

The current use of the site is not within the scope of the 1979 development consent

75. It is well established that in planning law, use must be for a purpose: Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [51]. The use of land is the “physical acts by which the land is made to serve some purpose”: Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] ALR 277 at 508. The characterisation of the purpose of a use of land “is not carried out by reference to the detailed activities, transactions or processes” (Abret at [52]). Instead, the purpose is “identified as the end for which the premises were being used” (Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 311).

76. The use authorised by the 1979 development consent is not characterised by the individual activities carried out on the site, but by the purpose served by the activities approved by the consent and the end for which the site was approved to be used. That purpose can be understood from the grant of the application for development consent, together with the plans that are approved by the grant of consent.

77. In granting the 1979 development consent, the use authorised by the consent is consistent with the description of the proposed development found in the development application, which is “metal manufacturing, foundry, general engineering and metal pressing”. I consider that the purpose of that use is a foundry. I accept the definition that is agreed by the parties that a foundry is “a place where metal castings are produced”, and that a casting is an object made by pouring molten metal or other material into a mould.

78. Each of the individual activities that are approved to be carried out on the site are directed to the purpose of a foundry. That is, the “metal manufacturing”, “general engineering” and “metal pressing” that are described as the proposed development in the development application are each activities that are carried out for the purpose of the foundry. Similarly, the list of the machinery that is currently installed, “lathes, metal planes, milling, grinding and general engineering machines”, and the description of the machinery to be installed as part of the development, “power presses, metal guillotines and new induction melting machines”, are all machinery that is for the purpose of the foundry.

79. The waste that is described in the development application as being produced by the use is consistent with the purpose of the use as a foundry: sand, which is used in the casting process; and swarf, which are the small offcuts that result from cutting metal to shape.

80. That the use approved by the 1979 development consent is for the purpose of a foundry is also consistent with the plans approved by the consent, which show areas of the foundry, including the pressing shop, machine shop and show rooms.

81. It is therefore clear that the purpose of the use authorised by the 1979 development consent is as a foundry, with all of the approved activities, machinery, and plans, directed to the purpose of a foundry. This is the only use authorised by the 1979 development consent.

82. However, the current activities on the Premises are not a use for the purpose of a foundry and are therefore not authorised by the 1979 development consent.

83. The current activities on the Premises are for the purpose of scrap metal receipt, processing and transfer. It is conceded by Shah that the current activities involve the receiving of ferrous and non-ferrous metal scraps on the Premises by purchase, the sorting of those scraps into different types of metals (including the removal of non-metal parts) and the sale of the scrap metal to metal foundries, overseas buyers and other businesses. This includes loading the metals onto shipping containers for overseas export.

84. It matters not that some of the activities approved by the 1979 development consent overlap with the current activities on the Premises. What is relevant is that the purpose of the use approved by the 1979 development consent is not the purpose of the use currently undertaken on the Premises. Whereas the former was for the purpose of a foundry, the latter is for the purpose of scrap metal receipt, processing and transfer. Accordingly, the current activities on the Premises are not authorised by the 1979 development consent, as they are not for the purpose of the use authorised by that consent. The current activities are therefore carried out without development consent.

The current use falls within the definition of a waste or resource transfer station

85. I accept the Council’s position that this current use for scrap metal receipt, processing and transfer falls within the definition of a “waste or resource transfer station”. The Premises are used for the “collection and transfer” of waste in the form of scrap metal, in that they receive the scrap metal, sort it, compact it and store it temporarily before distributing it to buyers by either direct sale or loading it onto shipping containers for transport. This squarely falls within the definition of “waste or resource transfer station” contained in the CLEP. There is nothing in that definition that precludes the “waste or resource” from being purchased or sold.

86. The current use of the Premises is therefore for the purpose of a waste or resource transfer station. This is a use that is permissible on the site, but only with development consent, pursuant to the SEPP TI. As the Premises does not benefit from development consent for use as a waste or resource transfer station, Shah is carrying out a use for which development consent is required and has not been obtained.

The statutory requirements for the issue of the Order are met

87. The statutory requirements for the issue of a stop use order are met. As set out above, Item 1 of Pt 1 of Sch 5 of the EPA Act allows a stop use order to be issued to the “person using the premises or building” if the premises are being used for a purpose which a planning approval is required but has not been obtained.

88. Shah is presently using the Premises for the purpose of scrap metal receipt, processing and transfer, which falls within the definition of a waste or resource transfer station under the CLEP, and requires planning approval in the form of a development consent. Accordingly, a stop use order can be issued to stop that use from continuing.

A stop use order is appropriate

89. Notwithstanding that the statutory requirements for the issue of a stop use order are met, there remains a discretion as to whether an order ought to be issued (see Maroun Holdings Pty Ltd v Kiama Municipal Council [2020] NSWLEC 1013 at [7]). However, none of the matters raised by Shah warrant the exercise of discretion in favour of the revocation of the Order. Instead, the evidence before the Court establishes that the acoustic impacts caused by the use of the Premises are such that it is appropriate for the Order to remain in place and for the current use of the Premises to cease.

90. First, that there is another similar use carried out on another premises on the site does not warrant revocation of the order. The Council has taken steps to issue a Notice of Intention to issue an order to Sydney Copper Scraps, which also operates on the site. There can be any number of reasons why a stop use order has not been issued to that premises, and the fact that it has not so issued is not adequate, in my view, for the Court to be persuaded that a stop use order is not appropriate for the Premises.

91. Second, I do not accept that it was reasonable for Shah to commence the present use of the Premises based on “existing use rights based on advice both from Council and my landlord” (Ex A p 6). There is no conduct on behalf of the Council that conveys that the use for the purpose of scrap metal receipt, processing and transfer was acceptable. Mr Baqir relied on advice from the landlord without obtaining legal advice or planning opinion. The so-called “advice” of the council officer was dependant on the historical consent, which Shah did not obtain before commencing operation.

92. Third, the omission that a “waste or resource transfer station” is permissible on the site from the reasons given to support the issue of the order is not a sufficient basis on which to exercise the discretion to revoke the order. The reasons are detailed, but omit that the use is permissible under the SEPP TI. This omission is not fatal, on four bases. The first basis is that one of the reasons given for the issue of the order remained even once it became clear that a waste or resource transfer station was permissible on the site. The reasons contained two grounds for the issue of the stop use order, one of which was that the current use is not operating pursuant to a development consent, which was worded as “not operating under a valid development consent”. Although the use of the word “valid” was unnecessary, this ground remained even once it was discovered that a waste or resource transfer station was permissible on the site. The second basis is that, if there is an error of fact in the Order that concerns the source of power to issue the Order, this does not invalidate the Order where another source of the power exists. This is clear from J & J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223; [2002] NSWCA 259 in which Stein JA states that “if the council made a mistake as to its source of power in making the order, where an alternative source of power exists it may be relied on” (at [45]).” The third basis that this omission is not fatal is that, even if I found that the reasons were inadequate in some way (which I do not so find), the order nevertheless persists so as to found the jurisdiction of the Court to entertain an appeal under s 8.18 of the EPA Act. The fourth basis is that any mistake about the permissibility of a “waste or resource transfer station” did not change the position of Shah, which was to rely on the 1979 development consent. I therefore do not consider that the omission of the permissibility of a waste or resource transfer station under the SEPP TI in the reasons for the Order warrants the exercise of discretion in favour of revoking the Order.

93. Further, that action could be taken under the separate legislative regime in the Protection of the Environment Operations Act 1997 does not make it inappropriate to issue an order under the EPA Act.

94. To the contrary, in considering the evidence before the Court, it is clear that the impacts of the current use of the premises warrants the exercise of the Court’s discretion to maintain the Order. The evidence establishes ongoing complaints about the impact of the noise from the Premises on the operation of other proximate businesses. That impact was investigated on two occasions by a council officer, who observed the activities on the Premises and observed that they “were significantly audible with both… car windows open and closed”. On the second occasion the council officer observed that the acoustic impact remained the same.

95. The extent of the acoustic impact is such that one of the businesses in the vicinity is unable to carry out its business by telephone, as stated by the landlord “for them to conduct normal business telephone conversation from within their offices, is near impossible.” Given this empirical evidence, I do not accept the submission made by Shah that objective acoustic measurements need to have been obtained by the Council to support the evidence of an acoustic impact.

96. The evidence establishes that the impact of the current use is such that it interferes with the operation of the businesses in the vicinity of the Premises. This evidence of the acoustic impact is not challenged or contradicted. There is also no evidence that Shah has taken any steps to mitigate this impact.

97. The grant of a development consent, with conditions, is the usual way in which a use is managed to ensure that any impacts remain acceptable. Shah currently operates the Premises without development consent, and without taking any steps to mitigate the impacts of the use. The acoustic impact of that use is presently interfering with the ability of businesses to carry out their work, and is therefore unacceptable. Accordingly, the use ought not continue and it is entirely appropriate for a stop use order to be issued in accordance with Item 1 in the table to Pt 1 of Sch 5 of the EPA Act.

98. The Order should therefore be modified in the manner proposed by the Council, which includes the reference to the SEPP TI and a new time frame for compliance.

Submissions on existing use

99. The parties both made submissions concerning an existing use and the right to continue an existing use. In particular, Shah relies on the 1979 development consent to establish an existing use within the meaning of s 4.65 of the EPA Act.

100. However, I have determined that use approved by the 1979 development consent is not for the same purpose as the current use of the Premises, which is for the purpose of a waste or resource transfer station for which development consent is required. Accordingly, the submissions on there being an existing use are irrelevant and do not require consideration.

Time for compliance

101. Shah asks for 6 months to comply with a stop use order, which will allow time to lodge a development application and an appeal process to commence with respect to that development application.

102. However, I am not satisfied that it is appropriate to allow the use of the Premises to continue for a period of 6 months. The current use of the Premises results in actual noise impacts that cause interference with the operation of other businesses, and there is not a skerrick of evidence of any steps taken by Shah to mitigate those acoustic impacts. A development consent is the usual manner by which a use of a premises can be regulated to ensure that there are acceptable impacts.

103. Shah has carried out the current use of the Premises without development consent and without taking any steps to mitigate its impacts. There is evidence that the impact is unacceptable as it causes interference with the operation of other businesses. Without either a development consent to regulate its impacts, or without Shah taking its own steps to mitigate the impacts, the Premises should not be permitted to continue its current use. In such circumstances, I consider that the use should cease as soon as practicable, and the period of 28 days nominated by the Council is more than generous to allow that to occur.

The outcome of the appeal

104. As set out above, I have determined that the current use of the Premises is not for the purpose of the use authorised by the 1979 development consent. Instead, the current use of the Premises is for the purpose of a waste or resource transfer station, for which development consent is required and has not been obtained. In circumstances where the current use of the Premises is causing actual amenity impacts and there have been no steps taken to mitigate those impacts, the Order should remain in place and no extension of time should be given for compliance beyond the 28 days proposed by the Council.

105. The appeal should be upheld to allow the Order to be modified in the manner proposed by the Council and to allow 28 days for Shah to cease the use.

106. The Court orders that:

1. The appeal is upheld.

2. The development control order issued by Cumberland Council on 22 December 2021 pursuant to s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) in terms of a stop use order, Order Number 1 in the table to Part 1 of Schedule 5 of the Act, is modified and the terms of the modified order are set out in Annexure A.

3. Exhibits B-E are returned, and the remaining exhibits are retained.

……………………….

Joanne Gray

Commissioner of the Court

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Annexure A 

Decision last updated: 30 September 2022