Tomasy Pty Ltd v Pittwater Council

[2016] NSWLEC 40

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tomasy Pty Ltd v Pittwater Council [2016] NSWLEC 40
Hearing dates:	13 April 2016
Date of orders:	13 April 2016
Decision date:	13 April 2016
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See [19].
Catchwords:	APPEAL – Class 1 appeal – separate question of law – whether proposed development permissible on land in the 1(a) Non-Urban Zone of the Pittwater LEP – proposed development prohibited
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 97 Factories, Shops and Industries Act 1962 (NSW) Pittwater Local Environment Plan 1993, cl 9 Pittwater Local Environmental Plan 2014
Cases Cited:	Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 ES Turnbull Pty Ltd v Wollongong City Council (1988) 65 LGRA 353 Mitchell v Wollondilly Shire Council [2000] NSWLEC 54
Category:	Procedural and other rulings
Parties:	Tomasy Pty Ltd (Applicant) Pittwater Council (Respondent)
Representation:	COUNSEL: T To (Applicant) M Carpenter (Respondent)   SOLICITORS: McCabes Lawyers (Applicant) King & Wood Mallesons (Respondent)
File Number(s):	11165 of 2015

EX TEMPORE Judgment

1. On 11 December 2015 the Applicant Matthews Contracting Pty Ltd (“Matthews”) through its planning consultant Tomasy Pty Ltd appealed to this Court against Pittwater Council’s (“the Council”) refusal of development application no. DA N0145/15 (“DA”) pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (NSW). By orders made on the Council’s Notices of Motion dated 11 February 2016 and 1 March 2016, the following question was listed for separate hearing on 13 April 2016:

Is the development proposed by Development Application N0145/15 permissible on land in the 1(a) Non-Urban Zone of the Pittwater Local Environmental Plan 1993?

Statement of Agreed Facts (SOAF)

2. The parties agreed on the following facts in a Statement of Agreed Facts (SOAF) with annexures prepared by the Applicant as Exhibit A:

The Parties

1.   The Applicant is the planning and property consultancy which prepared the subject development application for Matthews Contracting Pty Limited (“Matthews”). Matthews provides equipment, staff and expertise for bulk excavation, demolition, site remediation, land clearing, rock sawing and grinding.

2.   The principal place of business of Matthews is 11 Addison Road, Ingleside. Matthews is a family owned business. Stephen Charles Matthews of 11 Addison Road, Ingleside is the sole director and secretary of Matthews.

3.   The Respondent is the Council constituted under the Local Government [Act] 1993 responsible for the local government area of Pittwater.

The Site

4.   The subject site is known as 11 Addison Road, Ingleside. Its legal description is Lot 1831 in DP 812302 (the “Site”).

5.   The registered proprietors of the Site are Kevin Charles Matthews and Beryl June Matthews as joint tenants in a half share with Stephen Charles Matthews and Joanne Shirley Matthews as tenants in common in a half share.

6.   The Site is located on the western side of Addison Road between Mona Vale Road and the unformed portion of Harvey Road. The Site has a total area of 1.86ha.

7.   The Site is currently occupied by an existing dual occupancy development located in the eastern portion of the Site fronting onto Addison Road. At the rear of the dual occupancy development is an in-ground swimming pool.

Facts concerning the proposed use

8.   The Applicant carries on a business that involves the following activities:

a.   Demolition of houses, factories, units, garages and removal of swimming pools;

b.   Strip-out of commercial and residential buildings, shopping centres and schools;

c.   Excavation, including bulk excavation and excavation for footings to support future buildings or other structures;

d.   Piering;

e.   Installation of retaining structures assembled from a variety of materials including metal, wood, concrete, shot-crete;

f.   Rock sawing and cutting.

9.   Extracts from the Applicant’s website showing the services it provides are attached to this Statement and marked A.

10.   The applicant stores some recovered materials on the Site, pending re-sale, however storage of extractive materials does not form part of the subject development application.

DA N0145/15

11.   Development application no. DA N0145/15 (the “Application”) was lodged with Council on 23 May 2014 and is for the “use of a portion of the site for the purposes of an industry directly associated with extractive industries”. Development Application N0145/15 is described by Council in their letter of acknowledgment dated 2 June 2014 as:

for use of western half of site for the purposes of an industry associated with extractive industries. Associated relocation of refuelling station, construction of new storage shed and wash bay.

12.   Equipment used for the activities of the company is described on page 9 of the Statement of Environmental Effects as encompassing “a range of vehicles and machinery including excavators ranging in size from 5-27 tonnes, skid steer equipment, bogey tip trucks and trailers, articulated tip trucks and low loaders for the transport of equipment from site to site.”

13   The proposed hours of operation are 7am to 6pm Mondays to Fridays and 7am to noon on Saturdays.

14.   Eight staff are proposed.

15.   The Application also seeks development consent for the following works:

a.   New colorbond storage and maintenance shed plus adjoining truck wash bay on the eastern side of the proposed building;

b.   Installation of rainwater tanks on southern side of proposed storage maintenance shed;

c.   Four dedicated car parking spaces in close proximity to the new proposed storage shed;

d.   Relocation of the existing fuel tank with minimal excavation required;

e.   Retention of existing bore water tanks;

f.   Existing septic tank (close to western boundary) to be demolished;

g.   Cut back of existing concrete slab to be wholly within subject property on the western boundary;

h.   Existing concrete hardstand area in centre of site near existing truck wash bay to be demolished;

i.   Office building to be retained subject to works outlined in BCA report together with carport structure and four dedicated car parking spaces south of the existing office building;

j.   Metal shed at the rear of the office building to be retained subject to BCA requirements;

k.   Existing demountable structure in northern section of the site to be demolished/removed;

l.   Existing water tanks to be retained;

m.   Existing gravel driveway/fire break along western and northern boundary to be retained; and

n.   Existing access driveway to office building to be retained.

Planning Controls

3. The Site is zoned “1(a) Non-Urban zone” under the Pittwater Local Environmental Plan 1993 (“PLEP 1993”) the environmental planning instrument in force at the time of the lodgement of the DA. Although the PLEP 1993 has since been repealed by the commencement of Pittwater Local Environmental Plan 2014 on 28 June 2015, cl 1.8A preserves the operation of the PLEP 1993 by providing that the DA must be determined as if the 2014 plan had not commenced.

4. Clause 9 “Development Control Table” of the PLEP 1993 outlines the purposes for which development may be carried out without development consent, development which may be carried out with development consent and development that is prohibited. Clause 9 provides:

ZONE No. 1(a) (NON-URBAN “A”)

1   Without development consent

Agriculture (other than pig-keeping or poultry farming); forestry.

2   Only with development consent

Any purpose other than a purpose for which development may be carried out without development consent or a purpose for which development is prohibited.

3   Prohibited

Boarding-houses; bulk stores; car repair stations; commercial premises (other than animal training or boarding establishments, caravan parks, veterinary clinics or riding schools); dwelling-houses; heliports; industries (other than rural industries, home industries, extractive industries or industries directly associated or connected with, or dependent upon, extractive industries); junk yards; motor showrooms; recreation establishments; residential flat buildings; shops; warehouses.

5. The Environmental Planning and Assessment Model Provisions 1980 (“Model Provisions”) as adopted by the PLEP 1993 provide:

PART II - DEFINITIONS

4. (1) Except in so far as the context or subject matter of the local environmental plan otherwise indicates or requires -

…

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

…

“extractive industry” means -

(a) the winning of extractive material, or

(b) an undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on, and includes any washing, crushing, grinding, milling or separating into different sizes of that extractive material on that land;

“extractive material” means sand, gravel, clay, turf, soil, rock, stone or similar substances;

…

“industry” means:

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

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

but does not include an extractive industry.

…

6. The former Factories, Shops and Manufacturing Act 1962 (“Factories, Shops and Manufacturing Act”) defined a “manufacturing process” as follows:

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

Evidence

7. In addition to the SOAF a bundle of documents containing the first page of the development application form, pp 9 and 10 of the Statement of Environmental Effects (“SEE”), Development Application Plan No SD08A and a plan of the truck entry turning path was tendered by the Applicant as Exhibit B. Page 9 of the SEE under the heading “The Proposal” states, “[t]he proposed use of the subject premises for an industry directly associated with extractive industries seeks consent for the subject site to store and maintain vehicles, machinery and materials associated with the activities of the Matthews Contracting company being a family owned enterprise which carries out excavation, civil works and demolition throughout the Sydney region”. PLEP 1993 (Exhibit C) was also tendered by the Applicant. The Applicant tendered its Amended Statement of Facts and Contentions filed in the substantive Class 1 proceedings as Exhibit D. The first sheet of the development application site plan was tendered by the Applicant as Exhibit E.

8. The affidavit of Stephen Matthews the sole director of Matthews sworn 7 April 2016 was read by the Applicant. In the affidavit Mr Matthews lists the services that are carried out by Matthews such as deconstruction of buildings, asbestos removal, excavation, construction of retaining walls, site remediation, land clearing, supply extracted material to sites, rock sawing, rock breaking and recycling and sorting of materials. The affidavit attests to the use of the subject land to store earthmoving equipment and the accessories used with earthmoving equipment in order to carry out the services Matthews provides, to park trucks, store some material from projects (such as sand, sandstone and blocks and other recovered materials), to repair and refuel vehicles, fit required attachments and accessories to vehicles and for administrative support. Mr Matthews gave evidence in his affidavit that the services that Matthews provides and the types of jobs that Matthews engages in are dependent upon soil, sand, gravel, clay, sandstone and other materials extracted from the ground, in some cases from the site of a particular job, but also often not from the site. Aside from using such extracted material directly to construct things such as road bases, walls, water control structures and to line dams, Matthews’ operations also depend upon such excavated materials as ingredients in concrete and shot-crete, which it uses extensively in constructing piers and retaining walls. Annexures A and C to the affidavit contain photographs of the kinds of works and the particular projects undertaken by Matthews.

Applicant’s submissions

9. The relevant enquiry to determine the Court’s categorisation of the Applicant’s activities is the end purpose served by those activities. The end purpose is to carry out an industry that is dependent upon an extractive industry. The proposed development is exempt from classification as prohibited development under cl 9 of the PLEP 1993 as it is properly categorised as an industry that is “directly associated or connected with, or dependent upon, extractive industries”. The proposed development falls within both limbs of the definition of “industry” in the PLEP 1993 as it involves a “manufacturing process” as well as “the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business”. Using component materials to construct for example a retaining wall can be described as the making or assembling of goods or articles for trade or sale or gain or as ancillary to a business, thereby satisfying the definition of “manufacturing process” contained in the Factories, Shops and Industries Act. The demolition of buildings for example can be described as the breaking up or dismantling of goods or articles for trade or sale or gain.

10. The Applicant’s off-site operations are of an industry dependent upon extractive industries, as they rely upon the use of extractive material such as rock, sand and clay that is the output of an extractive industry. The photographs contained in the annexures to the affidavit of Mr Matthews demonstrate the use of these extractive materials in the works undertaken by the Applicant. The Applicant’s off-site activities require the use of extractive materials. It is legitimate to have regard to off-site activities in the task of categorising the proposed development. The activities proposed to be undertaken on the subject land serve the end purpose of an industry that is dependent upon extractive materials and the development is therefore permissible within Zone No 1(a).

11. The Council submitted that the DA was for a prohibited development.

The Applicant’s DA is prohibited under the LEP

12. As I agree with the Council’s submissions I will largely repeat these in my finding. The parties agree on the principles applicable to the characterisation of development which are summarised in Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 at [26]-[28]. The end purpose which the development serves in contrast to individual uses or activities on the land must be identified. The Applicant says that the purpose of the development is the “use of a portion of the site for the purposes of an industry directly associated with extractive industries”, as the DA states on the first page. The Council says that the purpose is the commercial operation of a business on site. The purpose is to be objectively identified. The description on the DA form is not conclusive.

13. The SOAF identifies at par 15 the work the subject of the development application in relation to the land at 11 Addison Road Ingleside. The first issue to determine is whether it is permissible in construing the development application’s purpose to look at activities off-site. In this case the Applicant’s description of the purpose is entirely informed by the activities of the company off-site at various project locations throughout Sydney, as demonstrated in annexure C of the affidavit of Mr Matthews. The Council correctly states that what must be considered is the purpose of the use of the land the subject of the DA. Development consent is not sought for any of the business activities identified in par 8 of the SOAF or in Mr Matthews’ affidavit and in annexures A and C, all of which occur elsewhere in various locations depending on what work is being carried out by the Applicant’s business. The three civil enforcement cases relied on by the Applicant provide no assistance as they do not address the planning law context before me. Mitchell v Wollondilly Shire Council [2000] NSWLEC 54 at [9]-[12] supports the Council’s approach as the decision on characterisation of purpose was based on what was intended to occur on the land the subject of the DA. Justice Cowdroy found the cremation facility on land the subject of the DA was being used for the purpose of trade because the cremation of animals was an integral part of a commercial enterprise. It may be that activities taking place outside the land the subject of a DA provide relevant context for what is sought in a DA but the Applicant’s case essentially ignores what is being applied for in the DA and relies for the characterisation of the purpose of the DA on activities conducted entirely outside the subject land. Similarly in ES Turnbull Pty Ltd v Wollongong City Council (1988) 65 LGRA 353 another case relied on by the Applicant the focus of the court’s inquiry was what occurred on the land informed by the nature of some activities off-site.

14. Do the on-site works the subject of the DA as itemised in par 15 of the SOAF and the uses of those buildings and areas for material and vehicle storage and vehicle repair as identified in the SEE satisfy the definition of industry in cl 9 of the PLEP 1993 which adopts the Model Provisions definition? Neither of the two limbs of that definition is satisfied. The DA does not seek consent for a manufacturing process within the meaning of the Factories, Shops and Industries Act (first limb, subs (a)). Nor does it involve the breaking up or dismantling of any goods or any article for trade or sale or gain or as an ancillary to any business (second limb, subs (b)).

15. The Applicant addressed the definition of manufacturing process in the Factories, Shops and Industries Act solely by reference to its off-site activities where it worked on various demolition and building projects as detailed in the affidavit of Mr Matthews which supplemented the SOAF at par 8. My conclusion on the first issue means that the Applicant is addressing the definition in the wrong factual context. It is therefore not strictly necessary that I form a concluded view on this issue. As I observed during the hearing, the application of the definition of manufacturing process to that building and construction work because it was said to involve assembling, breaking up or adapting goods or articles, which essentially were defined to mean any thing, renders the definition meaninglessly broad in my view. One of many examples relied on was reusing boulders to make a retaining wall (photo 6D of annexure A to Mr Matthews’ affidavit). Appropriate limits to the application of a broad definition must be applied when to do otherwise produces what I consider to be an anomalous result. The activities of the Applicant would generally be described in planning terms as demolition and construction activities.

16. Do the on-site works the subject of the DA as itemised in par 15 of the SOAF and the uses of those buildings and areas for material and vehicle storage and vehicle repair as identified in the SEE satisfy the definition of commercial premises in cl 9 of the PLEP 1993 which adopts the Model Provisions definition? The definition of commercial premises in the PLEP 1993 states that it applies, if otherwise satisfied, unless premises meet another definition in the Model Provisions. The work and identified activities the subject of the DA satisfy the first part of the definition as a building or place used as an office or for other business or commercial purposes. The premises at 11 Addison Road are described in the SOAF at par 2 as the principal place of business of the Applicant company. The proposed hours of operation are specified in the DA and in the SOAF at par 13. Eight staff are to be employed. These matters are all suggestive of a commercial or business purpose. No other definition appears to apply to the work and activities the subject of the DA so that the exclusion in the second part of the definition of the commercial premises does not apply. The DA is for commercial premises, a prohibited development in the 1(a) Non-Urban zone.

12. The third issue which does not arise given my earlier reasoning is whether the Applicant’s business activities off-site are an industry which is directly associated or connected with or dependent upon extractive industries, being the exclusion from an industry being prohibited in the zoning table in cl 9. Because some of the activities of the Applicant require the use of extractive material as defined meaning sand, gravel, clay, soil, rock etc as attested to by Mr Matthews in his affidavit this was submitted to mean that this exclusion applied to the Applicant’s business. I observe that as any construction activity is likely to require the use of some extractive material as defined in the PLEP 1993 such a statutory construction would result in a very broad application of the exclusion in the zoning table. I do not need to finally resolve this matter given my earlier conclusions and I decline to do so now.

13. The preliminary question is answered “no”. As a result of my reasoning above the Applicant’s development application is impermissibly seeking consent for prohibited development.

14. The Court finds that the answer to the preliminary question “Is the development proposed by Development Application N0145/15 permissible on land in the 1(a) Non-Urban Zone of the Pittwater Local Environmental Plan 1993?” is no.

**********

Decision last updated: 04 May 2016