Tipfast Pty Ltd v South Sydney City Council

[2002] NSWLEC 85

Reported Decision: 120 LGERA 292

Land and Environment Court

of New South Wales

CITATION:	Tipfast Pty Ltd v South Sydney City Council [2002] NSWLEC 85
PARTIES:	APPLICANT Tipfast Pty Ltd RESPONDENT South Sydney City Council
FILE NUMBER(S):	11023 of 2001
CORAM:	Pain J
KEY ISSUES:	Development Consent :- what constitutes development consent - recycling yard - whether crushing and screening permissible
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 92, s 121B, s121ZK Environmental Planning and Assessment Regulation 1980 cl 32
CASES CITED:	Auburn Municipal Council v Szabo (1971) 67 LGRA 427; Halglide Pty Ltd v Blacktown City Council and McNamara Property Management Pty Ltd (1990) 71 LGRA 215; Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 85 LGERA 37 ; Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45; Ryde Municipal Council v Royal Ryde Homes & Anor (1970) 19 LGRA 321; Shell Company v Parramatta City Council (1977) 27 LGRA 102; Stebbins & Anor v Lismore City Council (1998) 64 LGERA 132; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404; Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17; Woolworths Ltd v Campbells Cash and Carry (1996) 92 LGERA 244
DATES OF HEARING:	3, 24 April 2002
DATE OF JUDGMENT:	06/07/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen (Barrister) SOLICITORS Spiegel & Associates RESPONDENT Mr A Hawkes (Solicitor) SOLICITORS Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No: 11023 of 2001
ENVIRONMENT COURT

Coram: Pain J

OF NEW SOUTH WALES Decision date: 7 June 2002

TIP FAST PTY LTD

Applicant

v

SOUTH SYDNEY CITY COUNCIL

Respondent

JUDGMENT

Introduction

1. This is an appeal in Class 1 proceedings by the Applicant, Tip Fast Pty Ltd, against an Order dated 14 November 2001 issued by the Respondent, South Sydney City Council, under s 121B(1)(b) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The Order requires the Applicant to cease crushing and screening work on the premises, 5A Canal Road, St Peters (the premises), within seven days.

2. At the outset of the hearing, the Applicant and Respondent submitted that the most appropriate way for this matter to proceed was for the consideration of an initial point of law as raised in the Statement of Issues filed by the Respondent. The issue being:

1. Whether the use of the premises at 5A Canal Road St Peters by the applicant for crushing and screening is a use for which the applicant has consent from Council .

3. As, depending on the outcome of that question of law, there may not need to be consideration of any further matters I adopted this course. The relevant facts are that a development application dated 15 November 1993 was lodged with the Respondent pursuant to s 77(3) of the EP&A Act by the previous occupiers of the premises (the DA). The description of the development, for which development consent was sought was a recycling yard. According to the DA the building work to be undertaken was the "erection of a loading bay and erection of storage rack". There was no application in the DA for any plant or machinery to be installed. The type of goods to be stored, transported or manufactured was "steel, timber".

4. The Respondent sought additional information from the previous occupier of the premises as provided for under cl 32 of the Environmental Planning and Assessment Regulations 1980 (EP&A Regulations 1980) as in operation at that time. In the additional letters from the Respondent to the previous occupiers on 23 November 1993 and 17 December 1993, details were sought on matters including the type and amount of material to be stored, the size and frequency of trucks servicing the site, whether any materials were to be processed, cut or crushed on the site and the nature of the trade to be conducted. In response by letters dated 1 December 1993 and 17 March 1994 the previous occupiers advised that no material was to be processed, cut or crushed on the premises.

5. A Notice of the grant of development consent pursuant to s 92 of the EP&A Act was issued to the previous occupier of the premises on 22 July 1994. The Brief Description of the Application included in the Notice provided as follows:

To use the premises as a recycling yard involving the transfer and short term storage of steel, timber and related demolition material and the erection of a 2 m x 1.5 m pylon sign generally in accordance with the plans submitted with the application.

6. The plans lodged with the DA, and referred to in the development consent, showed the location of recycled material storage racks, truck turn around area, loading bay, car parking and container storage.

7. The previous owners vacated the premises sometime in 1999/2000. The Applicant has occupied the premises since April 2001.

What is the development consent constituted by?

8. A key issue which arose for consideration is what constituted the development consent in this matter. Did the document which was the s 92 Notice of development consent issued by the Respondent constitute the development consent in its entirety?

9. The terms of the s 92 Notice issued by the Respondent to the previous occupiers of the premises were:

WITH THE AUTHORITY OF MR N H WILSON (OWNER)


Date of Receipt 15 November 1993
and Number of
Application: U93-01054

Premises 5 Canal Road, St Peters

Brief Description
Of Application
To use the premises as a recycling yard involving the transfer and short term storage of steel, timber and related demolition material and the erection of a 2m x 1.5m pylon sign generally in accordance with the plans submitted with the application

Pursuant to Section 92 of the Act, notice of the granting of consent under the Environmental Planning and Assessment Act, 1979, to the abovementioned application is hereby given, subject to the following conditions: [conditions 1 - 21 then set out]

10. The Respondent argued that the plans submitted with the DA were clearly incorporated in light of the specific reference in the "Brief Description of Application" in the s 92 Notice. The Applicant conceded this was so. This is also supported by the case law which is discussed below (see Halglide Pty Ltd v Blacktown City Council and McNamara Property Management Pty Ltd (1990) 71 LGRA 215 and Stebbins & Anor v Lismore City Council (1998) 64 LGERA 132).

11. The Respondent further argued that the development consent incorporated the DA and the additional correspondence between the Respondent and the previous occupiers. This view was open, it was argued, because of the construction of the development consent. The Notice of consent stated, after the brief description of the application (see above in par 9), the following:

Pursuant to section 92 of the Act, notice of the granting of consent under the [EP&A Act] to the abovementioned application is hereby given

12. The Respondent argued this was a reference to the DA itself and consequently it could be construed as being part of the development consent. The Respondent also argued that while possibly an extension of the established principles as found in the relevant cases, it was open to the Court to conclude that the additional correspondence between the parties referred to in par 4 was also part of the development consent. The basis for this argument was that cl 32 of the EP&A Regulations 1980 enabled the Respondent to request additional information which was essential to the consent authority’s proper consideration of the application. This could be considered as part of the statutory regime operating as part of the development process under the EP&A Act. Cases the Respondent sought to rely on were Ryde Municipal Council v Royal Ryde Homes & Anor (1970) 19 LGRA 321, Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 85 LGERA 37 and Stebbins.

13. In Royal Ryde Homes Else-Mitchell J held at 323 - 4 that:

the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application…. I therefore think it is sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty.

14. The Federal Court decision of Wilcox J in Liverpool Rifle Club quoted approvingly Auburn Municipal Council v Szabo (1971) 67 LGRA 427. In Szabo Hope J stated at 433 - 4:

It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval.

15. Wilcox J in Liverpool Rifle Club stated at 46 that:

The authorities clearly establish that it is legitimate, in construing a development consent, to look at the plans that accompanied the application. However, this may be done only where the consent document expressly or inferentially incorporates the terms of the application and only where this is necessary for the purpose of interpreting the consent. … It is not legitimate to look at the documents that accompanied the application, or even the application itself, to contradict (whether by way of extension or contraction) the scope of a consent stated in clear terms. Stebbins is consistent with the last-stated proposition.

16. In Stebbins the Court of Appeal approved reference to a plan accompanying the application for development consent to determine the extent of the consent because the plan was referred to in the consent.

17. The Applicant argued that the development consent was limited to the consent document itself, and the plans referred to explicitly therein. The incorporation of any additional material, apart from the plans, was not open given the terms of the development consent itself. It is important to construe development consents precisely, as these are akin to a document in title for successive occupiers. The Applicant was unaware of the DA or the correspondence pursuant to cl 32 of the EP&A Regulations 1980 between the Respondent and the previous occupiers at the time it occupied the premises, and could not be expected to be. It had relied only on the development consent, as contained in the s 92 Notice, at the time it occupied the premises.

18. In support of its case, the Applicant also referred to the cases the Respondent had relied on, referred to above, to demonstrate that the case law emphasised caution towards including additional documents in a development consent unless the notice of consent clearly incorporated such material expressly or by necessary implication.

19. The Applicant also argued that the development application should only be incorporated in the consent where there is no description of the activity consented to within the development consent itself, relying on Shell Company v Parramatta City Council (1977) 27 LGRA 102 and Szabo. In this case, the Applicant argued, the use is described in the development consent in the "Brief Description of Application". Halglide was referred to in support of the submission that only in rare cases can other documents be looked to when interpreting a development consent. This was confirmed by Royal Ryde Homes in the judgment of Else-Mitchell J. The Applicant referred to Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404 to demonstrate the reluctance of the Courts to expand the development consent to documents even when reference is made to those documents in the consent. In that case an application to incorporate a letter attaching a plan referred to in the words of the development consent was not incorporated by the Court.

20. The decision of Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 was also referred to by the Applicant. The Court of Appeal confirmed that when determining what development is authorised this must be construed primarily from the consent itself. The Court of Appeal did not allow correspondence which accompanied the relevant application to be incorporated into the development consent. Spigelman CJ stated that:

A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions .

21. The Applicant considered these cases supported the argument that the Court should have regard only to the development consent and documents explicitly referred to therein (in this case, the plans accompanying the DA) in defining what activity was approved by the Respondent.

22. The parties filed a Notice of Motion after the hearing of this matter in order to raise for consideration the decision of Bignold J in Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45, which had been handed down a few days prior to this case being heard. In that decision his Honour was required to construe the contents of two development consents. His Honour found that the s 92(1) EP&A Act Notices issued in that case incorporated by express reference the development application in each case and, accordingly, it was legitimate to have regard to the terms of the development application and, in an extension of previous case law, additional documents which formed part of the development application, such as the statement of environmental effects. His Honour's stated reason for doing so was because of the detailed statutory regime in the EP&A Act and Regulations for the making and determination of a development application and the public availability of the register of development consents. The statement of environmental effects was required by cl 45 of the 1994 Regulation to accompany the development application and was relevantly part of the development application incorporated by express reference in the s 92(1) Notice. In his Honour's view, the significance of the detailed and comprehensive statutory regime in the EP&A Act had not been observed in the decided cases which generally referred to the situation pre-dating the EP&A Act. The decisions of the Court of Appeal in Stebbins and in Woolworths Ltd v Campbells Cash and Carry (1996) 92 LGERA 244 were referred to in support of this approach by his Honour.

23. The cases cited by the parties emphasise that only in limited situations should additional documentation be relied on, essentially when there is clear incorporation of further documents on the face of the development consent.

24. I do not think that the Loreto decision assists the Respondent's case. The key factual difference is that in that case it was held there was express incorporation of the development application in the terms of the s 92(1) Notice. This is not the same situation as in this matter because I find that there is no express or implied incorporation of the DA, only the plans attached to the DA. While there is reference to the number of the application for development in the s 92 Notice, the wording of the Notice when viewed as a whole does not suggest that the DA is incorporated either expressly or by implication. I would describe the s 92 Notice as "self contained", including as it does the description of the application for which consent is being given and specific reference to the plan, accompanying the application. No additional documentation is needed to clarify the content of the s 92 Notice.

25. I find that the development consent consists of the s 92 Notice and the plans referred to therein. The DA and additional correspondence do not form part of the development consent. Therefore, the meaning of the development consent can only be determined by examination of its explicit terms and by reference to the plans. The consequence of so finding is that the DA itself and the additional correspondence which does make clear that crushing and screening is not included in the development consent is not relevant. The terms of the development consent and the plans submitted with the DA must therefore be considered.

26. The development consent granted was for the purpose of:

a recycling yard involving the transfer and short term storage of steel, timber and related demolition material…generally in accordance with the plans submitted with the application.

The words crushing and screening are not mentioned in the development consent. There is apparently no definition of "recycling yard" within the relevant environmental planning instruments which applied to these premises, or at least none was provided to the Court.

27. In relation to the meaning of “recycling yard”, the Respondent argued that dictionary definitions were helpful, but not definitive. The Court is entitled to look at the wider context of the meaning of “recycling yard” in terms of its every day application. The issue is whether the term “recycling yard” must, by inevitable implication, involve crushing and screening. The statement of evidence of council officer Ms Edney was tendered in part only. Her evidence was that she had dealt with a number of recycling facilities near the Alexandria area and she stated that in none of these applications were goods screened or crushed, suggesting that a recycling yard does not automatically include these activities.

28. The Respondent further argued that the words in the consent from “involving the transfer" to "…plans submitted with the application” were intended to restrict the activities to be undertaken at the premises. The activities of crushing and screening were not in the range of activities authorised by the development consent as "the transfer and short term storage of steel etc…." did not include crushing and screening.

29. The Applicant argued the same words should not be interpreted as limiting the activities inherent in running a recycling yard, such as processing of material involving crushing and screening. Rather these were descriptive of the nature of activities to be undertaken, but did not limit the range of activities which could be undertaken in the recycling yard at the premises.

30. The Applicant argued that regard should be had to the dictionary definition of recycling which includes "to treat…so that new products can be manufactured from them" (Macquarie Dictionary, revised Third Edition). Essentially it was submitted that an element of processing is included in the definition of recycling. It was submitted the NSW Environment Protection Authority definition of “recycling of waste means the processing of waste into a similar non-waste product” is determinative of the nature of activity encompassed by a "recycling yard " in this context. The Respondent relied on the statement of evidence of its witnesses Messrs Gilder, Kennet and Dixon who also referred to their personal experience of recycling facilities, many of which did include crushing and screening as part of the processing of material. This material was presented to counter the evidence of Ms Edney but, the Applicant argued, the evidence of Ms Edney and Messrs Gilder, Kennet and Dixon was not relevant to the Court's consideration of the meaning of the development consent. I agree with the Applicant that evidence of everyday uses is not particularly helpful in these circumstances where that use clearly varies substantially between different facilities.

31. The Applicant further argued that there was no need for a development consent to include a reference to plant or machinery to be used in the recycling yard, such as a trommel and crusher. The Applicant argued this type of plant is mobile and no different to equipment such as a bulldozer, which could be used on the premises without development consent. Furthermore, the use of mobile machinery at the premises was consistent with the use of the recycling yard for processing of material. It could not be suggested that all the sorting of material, such as demolition waste, could be done by hand.

32. It is necessary to construe the words in the development consent itself and, in particular, the Brief Description of Application set out above in par 9. The case law referred to by the parties makes clear that the wording in development consents must be precisely applied (particularly Else-Mitchell J in Royal Ryde Homes). I accept the submissions of the Respondent that it was intended that the recycling yard be defined in a way that is limited by the words “involving the transfer and short term storage of steel, timber and related demolition material” and also “generally in accordance with the plans submitted with the application”. The consent does not state simply recycling yard. The words "transfer and short term storage" must be accorded meaning, as I have done. The relevant activity which is not included in these words is processing activities, such as "screening and crushing", in my view.

33. The development consent also consists of the plans submitted with the DA. The plans show the location of storage areas and truck parking and turning areas. No crushing and screening machinery is shown on the plans. The question of whether the Applicant is operating in accordance with the plans which accompanied the DA was mentioned by the Respondent, but was not argued as it is not the question raised by the point of law before me. I do not intend to make any finding or order in relation to that issue specifically. The plans do form part of the development consent, however, and are relevant to the construction of the consent.

34. The Applicant argued that because the machinery used on the premises to screen and crush material is mobile plant, namely a trommel and crusher, there is no need for the development consent to refer to these. While that may be so it ignores the fact that the development consent does include the plans attached to the DA. The plans are reasonably detailed. These plans are clearly relevant to defining the activity for which consent was granted. I simply note that they reflect plans for a business undertaking the transfer and short term storage of material. The absence of reference to other equipment supports the Respondent's construction of the consent.

Finding

35. In my view the correct interpretation of the development consent is that the terms of the s 92 Notice cannot be interpreted to include screening and crushing of material (steel, timber and related demolition material) as part of the activities of the recycling yard in the circumstances of this particular consent.

36. Under s 121ZK of the EP&A Act the Court has extensive powers to revoke, modify and make an Order as the Court thinks fit. The Court was informed by the parties' legal representatives that the parties are in negotiation over a revised period of six months for compliance with the Order in the event that it is upheld by the Court. I intend to confirm the terms of the Order to the effect that the activity of screening and crushing is to cease. There would be a stay of operation of the Order for a period of six months. A further possibility raised by the parties was that the Court may impose conditions to be complied with by the Applicant during that six month period so that the impacts of activities at the site would be ameliorated.

37. Before making any Orders I need to be satisfied as to their contents. To that end I direct that in seven days agreed draft minutes of order be filed by the parties giving effect to the Court’s findings set out in par 36.