Terra Ag Services Pty Ltd v Griffith City Council

[2017] NSWLEC 1355

Land and Environment Court

New South Wales

Medium Neutral Citation:

Terra Ag Services Pty Ltd v Griffith City Council [2017] NSWLEC 1355

Hearing dates:

28-30 March 2017

Date of orders:

06 July 2017

Decision date:

06 July 2017

Jurisdiction:

Class 1

Before:

Martin SC

Decision:

(1)The appeal is dismissed.
(2) Development Application no. 158/2015 submitted to Griffith City Council on 27 August 2015 for a Rural Supplies Business at Lot 528 DP 751709 The Kidman Way, Griffith, is determined by refusal.
(3) The Exhibits, save for Exhibits 5, 10, K and M, are returned.

Catchwords:

DEVELOPMENT APPLICATION – refusal – characterisation – rural supplies business or heavy industrial storage establishment – dominant and servient use does not arise in this case – more than one purpose

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 23I, 97 (1)
Griffith Local Environmental Plan 2014
Development Control Plan No. 3: Industrial Development (1995)
Development Control Plan No. 20: Car Parking (2011)
Development Control Plan No. 25: Public Notification of Development Applications (2003)
State Environmental Planning Policy No. 33 - Hazardous and Offensive Development

Cases Cited:

Abret Pty Limited v Wingecarribee Shire Council (2011) 180 LGERA 343 at [53] - [54]; [2011] NSWCA 107
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]
BGP Properties v Lake Macquarie Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117]
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Cranbrook School v Woollahra Council (2006) 146 LGERA 313 at 325; [2006] NSWCA 155
Egan v Hawkesbury City Council (1993) 79 LGERA 321
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161
Paynter Dixon Constructions Pty Ltd v Fairfield City Council [2011] NSWLEC 127
Shire of Perth v O’Keefe [1964] HCA 37; (1964) 110 CLR 529 at 534 – 535
Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184]; [2009] NSWLEC 23 at [17] – [18]

Category:

Principal judgment

Parties:

Terra Ag Services Pty Ltd (Applicant)
Griffith City Council (Respondent

Representation:

Counsel:

Dr S Berveling (Applicant)
Ms R McCulloch (Solicitor) (Respondent)

Solicitors:
McCabes Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2016/233562

Publication restriction:

No

Judgment

Introduction

1. Griffith is a thriving rural city located in southern central New South Wales, and is well regarded for its agricultural industry. The Applicant has sought approval for a development servicing this industry which is proposed to be located on a site at 894 Kidman Way, Griffith (the Site), 4 km to the south of the Griffith CBD. The Griffith City Council (the Council) has rejected an application for approval of this proposal. The Applicant brings this appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

2. The heart of this appeal is one of characterisation: is the proposed development on the Site permissible within the current zoning? The Applicant says it is a “rural supplies business”, permissible with consent; the Council says the correct characterisation is that of a “heavy industrial storage establishment”, a use that is prohibited in the B6 Enterprise Corridor Zone.

3. The matters in dispute in this case can thus be framed as follows: as a matter of characterisation, is the proposed development permissible under the relevant statutory planning controls? If it is, are there any merit reasons why consent should not be granted?

Decision

4. This judgment concludes that the answer to the first question lies in the negative, with the result that the proposed development is prohibited. This means that it is not necessary for me to consider whether there are any other planning reasons which would prevent the granting of development consent.

The Proposal: Construction and Activities

5. The proposal includes the following:

• the construction of an administration building approximately 535m² in area and comprising ten offices, a boardroom, staff room, amenities and a sales and display area.

• The construction of a shed measuring 72.0 metres x 50.0 metres and approximately 3600 m² in area and a height of 13 metres to the ridge-line. This shed is to be used for the unloading, storage, mixing, blending and loading of fertilisers used in the agricultural sector.

• The construction of a second shed measuring 35 metres x 77.35 metres approximately 2707 m² in area and a height of 8.0 metres to the ridge line. This shed is to be used for the storage of chemicals, some of which constitute dangerous goods.

6. The hours of operation are proposed to not exceed 7am – 6 pm Monday to Friday, with a longer day on Thursday (to 9 pm) and 7 am – 1 pm on Saturday. Consent is not sought to trade on public holidays or Sundays: Statement of Environmental Effects, Ex B at [2.4].

7. The estimated proportion of the total development which each category of use of the site will comprise is: the showroom, sales and office building – 8%; the fertiliser storage shed – 52%; the chemical and general storage shed – 40%: [Ex K p.2].

8. One of the documents provided to the Council in support of the application was a report by SLR Global Environmental Solutions which reviewed State Environmental Planning Policy No. 33 documentation, which report was dated 3 February 2017 [appended to [Ex M] as item 8]. This report states

The site will be used for the sale of agricultural material (chemicals and fertilisers) to local farms. The site will hold sufficient quantities of chemicals that are required for Terra Ag to supply their customers’ needs. It is understood that the quantities of chemicals stored are based on Terra Ag’s experience with operating their current facility in Griffith.

In addition to this, the site will hold and supply bulk quantities of fertilisers to local farms. On occasion and on request by Terra Ag’s customers, some fertilisers may be mixed or blended before being distributed to provide the best product that suits [the] customers’ needs and requirements. The volume of mixed and blended fertiliser will be less than 20,000 tonnes per annum [1.3.2].

9. The impact from the storage and handling of fertiliser will be minimised through the use of an enclosed shed. Whilst other fertiliser storage and handling facilities generally store fertiliser undercover but unload, mix and load material in the open or under just an awning, the Applicant proposes to undertake all these operations inside the shed in an attempt to control and minimise the potential for dust or odour nuisance on nearby residential and sensitive receptors. There is also proposed to be landscaped screening along the Site’s eastern and southern boundaries: Ex B at [2.7].

10. According to the oral evidence provided by the Applicant’s town planning expert, Mr Mead, a large amount of stock is required to be kept on site to ensure it is available to customers when they require it. This is particularly the case as the stock is brought to Griffith from the docks in Melbourne.

11. The proposed development would generate approximately 40 – 60 vehicle trips per day during non-peak periods, and approximately 100 vehicle trips per day during peak periods. Two to four deliveries a day would be in respect of the delivery of dry goods and chemicals, in vehicles ranging in size from vans and small rigid trucks to semi-trailers and B-Doubles. That same material would be collected by a variety of vehicles in 28 – 46 trips per day: [Ex K p.2].

12. For fertilisers, an average of 20 trips per days is estimated to occur during peak periods. The vehicles delivering fertiliser would generally comprise semi-trailers, B-Doubles or Road Trains while vehicles collecting the fertiliser may comprise utes or vehicles with trailers, rigid trucks, semi-trailers, B-Doubles or Road Trains: [Ex K p. 1].

13. The Site is shown in the images below, firstly in its local environs, and secondly its location in relation to the township of Griffith.

The Site

14. The Site is located on the eastern side of Kidman Way between Watkins Avenue and Rae Road, and is located in the B6 Enterprise Corridor zone under the Griffith Local Environmental Plan 2014 (GLEP). The Site is approximately 8.401 ha in area with a frontage of approximately 465 metres and a depth of approximately 194 metres. It is currently occupied by a dwelling and a shed, and is otherwise vacant, having previously been used for agricultural purposes. The proposed development is located on its southern part.

15. Immediately surrounding the Site is a mix of rural, rural-residential and commercial land uses. Large lot residential development lies to the north east, with bulky goods retailing to the north; vacant land and agricultural land, including a residence, to the west and a place of public worship, a Sikh temple, to the south. While the majority of nearby residential dwellings are located within Shiraz Drive to the north east, there are several dwellings associated with farms and other land uses within the vicinity of the Site.

Statutory Controls and Relevant Definitions

Statutory Controls

16. The controls which are relevant to this proposal are:

Griffith Local Environmental Plan 2014

Development Control Plans:

• Development Control Plan No. 3: Industrial Development (1995)

• Development Control Plan No. 20: Car Parking (2011)

• Development Control Plan No. 25: Public Notification of Development Applications (2003)

State Environmental Planning Policy No. 33 – Hazardous and Offensive Development

State Environmental Planning Policy No. 55 – Remediation of Land

State Environmental Planning Policy (Infrastructure) 2007

17. The particular aims of the GLEP include the prevention of unnecessary sprawl [GLEP cl 1.2(a)] and “to minimise land use conflict in general by creating areas of transition between different and potentially conflicting land uses”: GLEP cl. 1.2 (b).

18. In considering a development application (DA) in respect of land within any given zone, the Council is required to have regard to the objectives for development in that zone in that determination: GLEP cl 2.3(2).

19. The objectives of the B6 Enterprise Corridor zone are as follows:

• • To promote businesses along main roads and to encourage a mix of compatible uses.

• • To provide a range of employment uses (including business, office, retail and light industrial uses).

• • To maintain the economic strength of centres by limiting retailing activity.

• • To provide for residential uses, but only as part of a mixed use development.

• • To ensure residential development is associated with and ancillary to a primary business.

20. Thus in its terms, the B6 Enterprise Corridor zone both promotes retail uses, but, in something of an internal contradiction, also seeks to limit retail activity by maintaining “ the economic strength of centres”.

21. Uses permitted without consent are environmental protection works; home-based child care and home occupations.

22. Within the B6 Enterprise Corridor zone, any development other than that specified in clause 2 (permitted without consent) or clause 4 (prohibited) is permitted with consent. Those uses which are prohibited (emphasis mine) are

Agriculture; Air transport facilities; Airstrips; Animal boarding or training establishments; Biosolids treatment facilities; Boat launching ramps; Boat sheds; Camping grounds; Cemeteries; Charter and tourism boating facilities; Correctional centres; Crematoria; Eco-tourist facilities; Electricity generating works; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Farm stay accommodation; Forestry; Freight transport facilities; Group homes; Heavy industrial storage establishments; Home occupations (sex services); Industrial training facilities; Industries; Jetties; Marinas; Mooring pens; Moorings; Open cut mining; Residential accommodation; Resource recovery facilities; Restricted premises; Sewage treatment plants; Sex services premises; Shops; Waste disposal facilities; Water recreation structures; Water treatment facilities; Wharf or boating facilities

23. Relevantly, this demonstrates that heavy industrial storage establishments are prohibited in the B6 zone.

24. A rural supplies building is defined in GLEP to mean:

“… a building or place used for the display, sale or hire of stockfeeds, grains, seeds, fertilizers, veterinary supplies and other goods or materials used in farming and primary industry production.”

25. Development of such a building in the zone for the uses specified is not in the list of prohibited uses and is therefore permissible with development consent. Thus it is clear from this definition that the display, sale or hire of fertilisers is expressly contemplated in a rural supplies building. This is how the Applicant says the proposed development should be characterised.

26. On the other hand, a heavy industrial storage facility is defined to mean:

“… a building or place used for the storage of goods, materials, plant and machinery for commercial purposes and that requires separation from other development because of the nature of the processes involved, or the goods, materials, plant or machinery stored, and includes any of the following:

a hazardous storage establishment

a liquid fuel depot

an offensive storage establishment”

27. This is how the Council says the proposed development should be characterised. If the Council is correct, the proposed development, as earlier noted, is prohibited.

28. Each of the terms “hazardous storage establishment”; “liquid fuel depot” and “offensive storage establishment” are defined in GLEP. SEPP 33 also defines “hazardous storage establishment” and “offensive storage establishment”. The definitions in the GLEP and SEPP 33 are not identical but are very similar.

29. “Heavy industry” (as defined in the GLEP) also calls up the element of an industrial activity that requires separation from other development because of the nature of processes involved, or the materials used, stored or produced. This is in contrast to the term “industry” which has no such requirement for separation.

History of the Application

30. The DA for the proposed development was first lodged with the Council on 27 August 2015. There was considerable activity with respect to notifications, exhibition period, requests for further information and the like. An Independent Hearing Assessment Panel (IHAP) was appointed by the Council in March 2016 pursuant to the terms of s 23I of the EPA Act. The IHAP convened in June 2016, and recommended that the development be approved. However, Council refused the application in July 2016. That refusal resulted in the filing of this appeal on 3 August 2016.

31. In the course of undertaking the assessment of the DA, the Council requested the preparation of a Preliminary Hazard Assessment in September 2015 [Bundle of Documents, Ex 1 at p.73]. This request resulted in the preparation of the Preliminary Hazard Analysis dated 16 February 2016 [Ex C].

Site Visit

32. I had the benefit of a site visit to the proposed development at Griffith on 28 March 2017. That site visit comprised attending the location of the proposed development, together with a number of other sites having a rural supplies business aspect, in the company of the legal representatives of the parties and their experts. These other sites are sites which, says the Applicant, are comparable in terms of the business offering sought to be provided by the Applicant, insofar as there is a retail element (in two of the premises) as well as storage of chemicals, and bulk storage of fertilisers.

33. The Council tendered a document with planning information on these three “bulk fertiliser distributors” (as described in the memorandum): Ex 12. The information in the next three paragraphs is drawn from that document. (The zoning referred to in those paragraphs is that contained in the current GLEP 2014.)

34. The “Landmark” site (at 9 Lenehan Road Griffith) is located in the IN1 General Industrial zone, having received approval under the Griffith LEP 2002 for “agribusiness/bulky goods retailing” and later, “warehousing”. It was previously zoned “4(a) General Industrial”.

35. “Ag N Vet” (6-8 Lenehan Road Griffith), across the road from the “Landmark” site, is zoned B7 Business Park. It received approval under the LEP 1994 for the “storage and blending of industrial fertiliser”. Its former zoning was “4(a) Industrial”. While it had no “approved definition”, the Council’s assessment report stated that “the proposed development is generally consistent with the aims and objectives of that zone”.

36. The Yenda Producers Site – Incitec Pivot (Kidman Way, Tharbogang) is presently zoned IN3 Heavy Industrial. It received consent under the 1994 LEP (then-zoned 4(a) Industrial) for the establishment of a bulk fertiliser store, chemical store, machinery shed, office/showroom and weighbridge in 1997. Further approvals were later granted, including additions to an existing “agribusiness”. Similar to the Ag N Vet site, while it had no “approved definition”, the Council’s assessment report stated that “the proposed development is generally consistent with the aims and objectives of that zone”.

Objector Evidence

37. During the course of the Site visit I heard evidence from three witnesses objecting to the proposed development.

38. Mr Minato, the owner of Farm 908, the orchard on Kidman Way immediately to the west of the proposed development, raised his concerns about noise, traffic, dust and odour, including from diesel fumes and exhaust smoke from heavy vehicles. In particular, he noted his concern about the sale of fertilisers, and the possible health implications for his elderly parents. He also held concerns about the potential impact of the proposed development on the purity of his crops. Mr Minato expressed concern about the risk of fire in the chemical and fertiliser sheds: Ex 2.

39. Ms Churchill, a resident of Shiraz Drive, expressed concern about the volume of heavy vehicle traffic, most of which would be carrying fertilisers and chemicals; the impact on air quality of the proposed activities of fertiliser mixing, blending, loading and unloading; potential impact on rainwater stored in her tanks; and negative impact on property values: Ex 3.

40. Mr Chahal made a submission on behalf of the Sikh community: Ex 4. That community’s objections can be summarised as comprising concerns about the proximity of the proposed development to the Sikhs’ “most revered worship place”; the desirability of the Sikh population deserving respect from those who support multiculturalism; general concerns about amenity (arising from pollution from chemicals, and noise, dust and smoke); and potential for contamination from chemical spills. The Temple is heavily used by the Sikh community, including daily serving of meals served both inside and outside the building. There is also concern about the potential of chemical explosions. The Sikh community proposes to develop its site to include a children’s school, library, aged care facility and a hostel, which plans it says could be jeopardised by the proposed development. In concluding, the submission emphasises the importance of community values and the negative impacts approval of the development would have on the community.

41. I was assisted in understanding objectors’ concerns through visiting the neighbouring Sikh Temple, having the agricultural enterprise of Mr Minato pointed out to me, and driving along Shiraz Drive to better understand the relationship between the proposed development and residential dwellings (refer to locality plan above).

Expert Evidence

42. The following expert reports were tendered for the Applicant: Preliminary Hazard Analysis by Advitech Environmental [Ex C]; Report on Odour and Dust Emissions by Pacific Environment [Ex D]; Chemical Storage Report prepared by Kinniburgh and Associates [Ex G]; Town Planning Report prepared by Jeff Mead for Planning Ingenuity [Ex L]; SEPP 33 Assessment prepared by SLR Global Environmental Solutions [Ex M]; Acoustic impact report prepared by The Acoustic Group [Ex N]; Car Parking Report by Varga Traffic Planning [Ex O]; Air Quality Expert Report by Pacific Environment [Ex P].

42. For the Council, an expert town planning report was provided by Ms McCabe, Consultant Planner [Ex 7].

43. In addition, oral evidence was given in the hearing by expert town planners Mr Mead for the Applicant, and Ms McCabe for the Council. Together they authored a joint expert town planning report [Ex 8].

Submissions on Permissibility

The Applicant

45. The Applicant through its advocate Dr Berveling contends that the proposed development can only be properly characterised as “rural supplies” as defined within the GLEP. Drawing upon the decision of Preston CJ in Chamwell Pty Ltd v StrathfieldCouncil (2007) 151 LGERA 400; [2007] NSWLEC 114, the Applicant relies upon the principles that in planning law, use must be for a purpose [Chamwell at [27]], and “purpose” is not concerned with the nature of the buildings that will be used to serve that purpose (see generally Chamwell). In addition, “where part of the premises is used for a purpose which is subordinate to the purpose of the use of another part, it is legitimate to disregard the subordinate purpose and to treat the dominant purpose as that for which the whole is being used”: Beazley JA in Abret Pty Limited v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [54]; Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161.

46. The approach to be adopted in characterising the purpose of the proposed development was set out by Kitto J in Shire of Perth v O’Keefe [1964] HCA 37; (1964) 110 CLR 529 at 534 – 535 in the following terms:

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

47. In summarising the decision in Chamwell, Beazley JA in Abret stated that

… the use of the car park and associated activities were subordinate to the purpose of the supermarket and were not capable of being for an independent use of a road. Accordingly, they were properly to be characterised as for the use of a shop, namely the supermarket and thus the development was prohibited in the … zone: [53].

48. The Applicant then sought to demonstrate how the proposed development – characterised as a rural supplies industry – is on all fours with the facts in the Chamwell case, in order to establish that all the proposed activities on the site: the construction of the chemical and fertiliser sheds, the driveway and the car park, the landscaping, are all for the purpose of rural supplies. They are indivisible elements of the one integrated business. Following the logic of Chamwell, the Applicant says that this interrelationship means that all elements of the undertaking are characterised as rural supplies. Moreover, even if the use (of the sheds) could be seen to be for a different purpose, they are subordinate to the main purpose of rural supplies business.

49. The Applicant also relies upon the finding by Glass JA in Foodbarn that where one part of the premises is used for a purpose which is subordinate to the dominant purpose, “it is legitimate to disregard [the subordinate] and to treat the dominant purpose as that for which the whole is being used”: at p.161. In this case, says the Applicant, if the fertiliser shed comprised a use for a separate purpose, that purpose is ancillary to the dominant purpose of rural supplies retail premises.

50. The Applicant then points to the wide range of uses which are permissible in the zone. Weight is to be given to the proposition that development which is consistent with the zoning will be permitted, with greater weight to be given to achieving the objects of the planning instrument where the zoning is more specific: McClellan CJ in BGP Properties v Lake Macquarie Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117].

51. The Applicant rejects the contention by the Council that the development is a heavy industrial storage establishment for the reason that the pattern of a rural supplies business (office/showroom; storage shed; fertiliser shed) does not make those uses industrial. Principles of statutory interpretation require the language being used to be the “surest guide of legislative intention”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47].

52. Moreover, says the Applicant, the words “heavy industrial” import a heavy industrial nature to the storage establishment. The terms “hazardous industry” and “offensive industry” are not simply examples of heavy industry, but colour the definition. The definition of “heavy industrial storage establishment” is not so broad as to contemplate any storage establishment which might require separation from other development. In any event, the activities undertaken are not “industrial” as the blending of the types of fertiliser arises at the collection point after sales. Even if it is “processing” (and therefore a form of industry) it is ancillary to the use of rural supplies. No industrial activity is proposed to be undertaken, so the proposed development is not for an industry.

53. The Applicant further submits that SEPP 33 does not apply, as its application is triggered by the existence of (relevantly) a potentially hazardous industry or a potentially offensive industry. The proposed development is not development for the purposes of an industry. In this case, the preparation of documents in the evidence was triggered by the Council’s request for a Preliminary Hazard Analysis, which has led to the belief of one of the Applicant’s experts that SEPP 33 does in fact apply.

The Council

54. The Council’s advocate, Ms McCulloch, says that the proposal is not a hazardous storage establishment, a liquid fuel depot or an offensive storage establishment. Rather, the Council says that the proposal falls within the first part of the “heavy industrial storage establishment” definition; namely, the proposed development is a building or place “used for the storage of goods, materials, plant and machinery for commercial purposes and [that] requires separation from other development because of the nature of the processes involved, or the goods, materials, plant or machinery stored.”

55. Relying upon Biscoe J in Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184; [2009] NSWLEC 23 at [17] – [18], land may be used for more than one purpose, which involves an inquiry into what, according to ordinary terminology, is the appropriate categorisation of the purpose of the use. Categorisation of uses is a matter of fact and degree and borderline cases will inevitably arise. Characterisation must be done having regard to the provisions of the environmental planning instrument under which consent for that purpose is sought: Shire of Perth v O’Keefe.

56. The Council also relied upon the decision in Foodbarn for the proposition that a dominant purpose is to be considered as the purpose for which the whole is used, when there is a dominant and servient use for a purpose. The situation is different if there are two or more purposes and none subserves another. Crucial to the Council’s submissions is this finding from Glass JA:

Where the whole of the premises is used for two or more purposes none of which subserves the others, it is in my opinion irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed: at p.161.

57. The proposed development, says the Council, contains more than two purposes: these include “office”, and could also be “business premises”, “office premises”, “retail premises” and “rural supplies”. Each of the chemical storage and fertiliser buildings are uses for the purposes of “heavy industrial storage establishment” and “rural supplies”.

58. The Council made submissions with respect to reading the GLEP in the following terms. Because of the multiplicity of uses arising from the proposed development, the GLEP must be considered as a whole: Egan v Hawkesbury City Council (1993) 79 LGERA 321. Mahoney JA held that “the fact that a proscribed activity might fall within another definition was not intended to have the effect that it could be carried on, or carried on with consent”: p.328.

59. The reading of the GLEP as a whole, says the Council, leads to the following conclusion: the nominated uses which are permitted with consent in the B6 Enterprise Corridor zone have a common theme in that they are purposes appropriate to a main road, with limited residential use and limited external impacts [Exhibit 8[22]]. It is also relevant that the zoning of lands adjoining the site is R5 – Large Lot Residential. The Council’s characterisation of the development as a use prohibited in the zone is consistent with the zones indicated in the land zoning map. It is not desirable to locate businesses or uses which could have significant external impacts, particularly those which require separation from other development, in the B6 Enterprise Corridor zone.

60. The Council asserts that the term “include” when used in the definition of “heavy industrial storage establishment” does not limit the types of uses which come within the ambit of that definition to the three listed uses (see definition above at [26] of this judgment). There is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined: Beazley JA in Cranbrook School v Woollahra Council (2006) 146 LGERA 313 at 325; [2006] NSWCA 155.

61. Turning expressly to the activities within the proposed development, the development will comprise buildings used for the storage of goods or materials for a commercial purpose. Parts of the proposed development require separation from other development, because of the nature of the processes involved, or the goods or materials being stored. The Council lists multiple examples of where the proposed development requires separation from other development. Some of these examples (drawn from the Applicant’s evidence) include the requirement for dangerous goods to be stored in the chemical shed so as to meet setback provisions under the relevant Australian Standard [ExB at [2.8]]; the conclusion that it will be unlikely that there will be impacts on residents (arising from the storage of packaged hazardous chemicals including dangerous goods) due to the “more than required separation distances to protected places” as defined in the relevant Australian standards [Ex G]; and the observation contained in the air quality report that the nearest residence to the west would be blocked from exposure to dust and odour from the fertiliser shed by the chemical shed and offices [Ex P at 17].

62. The Council also relies upon Paynter Dixon Constructions Pty Ltd v Fairfield City Council [2011] NSWLEC 127 in submitting that the size of the proposed chemical storage and fertiliser storage buildings tells against the characterisation as “rural supplies” and in favour of a characterisation as “heavy industrial storage establishment”.

63. The evidence of the Council’s town planner is that the scale of the fertiliser shed and the chemical shed transformed the storage use of those buildings from being an ancillary function of a rural supplies business into a storage use which would be a separate use in itself: Ex 7 at [47], and oral evidence.

64. In responding to the Applicant’s submission that the proposed development represents a pattern of rural supplies business, the Council submits that none of the businesses visited were approved as “rural supplies”, but were approved under earlier instruments with different zoning.

Discussion and Findings

65. Having considered the evidence and the submissions of the parties, I accept the parties’ argument that the proposed development can be characterised as having more than one purpose. However, crucially, I prefer the Council’s argument in this respect: no one use is dominant or servient. I find that the part of the proposed development which is used for the purpose of heavy industrial storage is not subordinate to a dominant purpose of rural supplies, as was submitted by the Applicant.

66. In my view, it cannot be said that the delivery, storage, measuring and, where required, blending of fertilisers and chemicals is a servient use to the dominant use of a rural supplies business. This situation is unlike that presented in the Chamwell case, as in this case the proposed development could function without the fertiliser storage or chemical storage of the scale proposed. Adopting the Council’s submission, “those facilities at that scale may well be considered to be desirable by the applicant but they are not an essential part of it like the entrance driveway, the vehicle manoeuvring areas or the car parking spaces”.

67. With respect to whether or not there is a dominant or servient purpose, I respectfully adopt the finding of Glass JA in Foodbarn extracted at [56] above.

68. I find that one of the uses arising from the proposed development is a heavy industrial storage establishment, for the reason that the proposed development comprises a building, used for the storage of goods or material, for commercial purposes, that requires separation from other development because of the nature of the processes involved, or the goods or materials stored.

69. While the Council provided many examples in its submissions which in its view demonstrate the requirement for separation, thus satisfying that aspect of the definition, in my view one of the more forceful examples of this requirement for separation lies in the requirement for dangerous goods to be setback in accordance with the relevant Australian Standards [Ex B at [2.8]].

70. The Applicant’s position with respect to the safety of the fertiliser product is that this is a matter for the relevant authority, to ensure that the proposed methods of storage and transport are acceptable. The planning task before the Court is not in my view discharged by deferring responsibility for the question of storage and handling of fertilisers and chemicals to the various regulators. While the role of the regulators is essential, the approach advocated by the Applicant does not deal with the fundamental question of permissibility which largely turns on the need for separation of the proposed development from other development.

71. Further, the fact that separation from sensitive receptors (or protected places) can or may be achieved does not in my view operate so as to render the development no longer a heavy industrial storage facility. It remains so characterised, notwithstanding that any risk is or may be able to be mitigated (for example, through separation and management practices).

72. The definition of heavy industrial storage establishment in the GLEP is silent as to the role or relevance, if any, of mitigation measures. This is in contrast, for example, to the impact of mitigation in SEPP 33, where a “potentially hazardous storage industry” is expressly characterised as an industry which will have particular impacts but for the implementation of particular ameliorative measures.

73. I do not agree with Mr Mead, the Applicant’s town planner, that the size of the sheds is irrelevant. I find that the size of the sheds and amount of chemicals and fertilisers used go directly to the question of the need for separation, as well as informing my finding that there is no dominant or servient purpose.

74. The GLEP has sought to co-locate particular kinds of activity together. I accept the Council’s argument that the objectives of the B6 Enterprise Corridor zone are to encourage activity which does not have external impacts of such a kind that separation from other development is required.

75. With respect to the Applicant’s submission that the proposed development has similar characteristics to the other sites visited, as set out in [34] – [36] above, I accept Ms McCabe’s evidence that those operations had been approved under previous instruments, with different definitions and zonings. The analysis of the use did not arise with respect to those developments, in the manner in which it has here, where the proposed development would be located near sensitive areas.

76. I accept the Council’s submission that the definition of “heavy industrial storage establishment” does not, in the description of the essential elements of the purpose, use the phrase “offensive or hazardous”. The definition includes a much wider range of storage premises than those which are offensive or hazardous. That being my conclusion, the fact that the Applicant’s experts have concluded that the site is unlikely to present an unacceptable risk to surrounding receptors, provided specific design and management controls are implemented [Ex M at [5]], does not stop the proposed development from being prohibited development.

77. The correct analysis, in my view, is not to ask whether it is offensive or hazardous industry, but to ask whether one of the uses is a heavy industrial storage establishment, and whether that use is ancillary or subordinate to a rural supplies purpose. Using that analysis, I find that the proposed development is characterised as a heavy industrial storage facility which is not subservient to another purpose. It is therefore prohibited in the zone.

78. Finally, there has been some ambivalence from the parties as to the role and applicability of SEPP 33. In particular, the Applicant has argued that its inclusion in assessment of the proposed development has proceeded upon a misapprehension. The implication seems to be that any material produced which deals with SEPP 33 ought therefore to be given little if any weight. Be that as it may, I note that the provisions of SEPP 33 have not been determinative in this matter, but have been instructive with respect to the requirements for separation. The provisions of the GLEP are those that have informed my decision.

Conclusion

79. The Applicant has the persuasive burden to establish why the proposed development is permissible in the zone, and why development consent should be granted. In this case, the Court’s view is that for the reasons set out in this judgment that burden has not been discharged.

Orders

80. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application no. 158/2015 submitted to Griffith City Council on 27 August 2015 for a Rural Supplies Business at Lot 528 DP 751709 The Kidman Way, Griffith, is determined by refusal.

3. The Exhibits, save for Exhibits 5, 10, K and M, are returned.

Rosemary Martin

Senior Commissioner

Decision last updated: 06 July 2017