Building Recyclers Investments Pty Limited v Marrickville Council

"Materials recovery facility to process less than 30,000 tonnes per annum including plant and equipment.

The erection of a site office". 4. Part of the subject land is within 250 metres of the Southern Cross Hotel, No. 340 Princess [sic] Highway, St Peters ("the Hotel"). 5. Situated within the Hotel are some rooms occupied by the caretaker/manager.

6. The proposed development may be described as "crushing, grinding or separating works" pursuant to cl 16(1) of Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (NSW) ("the EP&A Regulation").

7. "Dwelling" is defined in Part 4 of Schedule 3 of the EP&A Regulation as: "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile."

8. The subject land is within the 4(A) General Industrial Zone under cl 15 of the Marrickville Local Environmental Plan 2001 ("the LEP").
9. The proposed development is permissible only with development consent pursuant to cl 15(4) of the LEP.

10. The Hotel is within the 4(a) General Industrial Zone under the Marrickville Local Environmental Plan 2001 ("the LEP").

11. Pursuant to cl 15 of the LEP the objectives of zone 4(A) are:

(a) to identify areas suitable for industrial warehousing activities, and (b) to permit a range of support and ancillary uses.

12. The Hotel is permissible in the 4(A) General Industrial Zone with development consent.
13. Dwellings that are not used in conjunction with a permissible use are prohibited in the 4(A) General Industrial Zone.

14. The Statement of Environmental Effects submitted with the development application stated that the proposed development was not within 250 metres of a dwelling. The rooms in question in the Hotel are not discernible from an external inspection as being otherwise than part of the Hotel.

15. The issue that the development was designated development due to it being located within 250 metres of a dwelling not associated with the development was not referred to or mentioned during the processing of the development application before being raised as a point of law in these proceedings. Question 1 - is the proposed development designated development?
16. The parties have further refined the outstanding issues between them and advised, as is clear from the Statement of Agreed Facts, that there is no dispute that the proposed development comprises "crushing, grinding or separating works" as defined in Sch 3 of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation) and referred to in question 1(a). Accordingly in question 1 the outstanding issue is (b), whether the proposed development is located within 250m of a dwelling not associated with the development as referred to in par 16(1)(b)(ii) of Sch 3 of the EP&A Regulation.

5. Under par 16(1)(b)(ii) crushing, grinding or separating works that are located within 250 metres of a residential zone or dwelling not associated with the development is designated development. "Dwelling" is defined in Pt 4 of Sch 3 as "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile".

6. It is agreed in the Statement of Agreed Facts that the proposed development is within 250m of the Southern Cross Hotel at 340 Princes Highway, St Peters. A separate caretaker/manager's "flat" is located within the hotel building. The "flat" is accessed from separate external stairs as well as from within the hotel. It is not readily identifiable from the street as a separate domicile. It has apparently only come to the parties' attention recently that there is such a "flat" within the hotel building. Council's submissions
7. The Council argued that the caretaker or manager's residence in the hotel clearly meets the definition of "dwelling" in Pt 4 of Sch 3 of the EP&A Regulation. Affidavit evidence of an inspection of the hotel premises by a Council officer was relied on. The evidence of the Council officer was that the current caretaker had lived in the "flat" for a few months and the hotel had always had a caretaker living on site. Furthermore, the "flat" consisted of a kitchen, lounge room, bedroom, bathroom and laundry area. The Council therefore submitted that the residence is a separate entity within the hotel which is capable of being used as a separate domicile, apart from other activities in the hotel.

8. Reliance was placed by the Council on the decision of Pearlman J in Wyong Shire Council v Ardi Pty Ltd (2000) 112 LGERA 85 in which her Honour was considering a definition of "dwelling" contained in an LEP which was in essentially identical terms to that in Pt 4 of Sch 3. Her Honour held at par 17 that the ordinary meaning of domicile meaning "place of residence", "abode" or "house or home" should be applied in the context of a planning control rather than a technical legal meaning as a permanent residence to which the subject, if absent, has the intention of returning.

9. The decision of Cowdroy J in Mackenzie v Warringah Council (2003) 124 LGERA 208 was also relied on by the Council where his Honour held at [25] that it is necessary to have an element of permanence to satisfy the meaning of domicile. Applicant's submissions
10. The Applicant argued that the context of Sch 3 of the EP&A Regulation is important in determining the correct approach to the interpretation of dwelling in Sch 3. An approach to the interpretation of "dwelling" that is limited to a literal interpretation of the definition in Sch 3, whereby only physical attributes of a particular room or suite of rooms is considered, will result in an absurd or irrational outcome in this case which Parliament could not have intended.

11. "Dwelling" should be categorised in accordance with the principles in Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157. In Foodbarn Glass JA (Samuels and Hutley JJA agreeing) stated at 161: … where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. …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 Applicant argued that, relying on Foodbarn , if the dwelling is subordinate to another use, for example, a caretaker/manager's "flat" in the hotel, the residential use should not trigger the Schedule's classification as designated development. It is not the dwelling use that triggers the Schedule's classification as designated development, but rather, such a use separate from other expected uses in the locality which do not trigger the application of the schedule.

12. Essentially the Applicant urged on the Court the same approach to the determination of "dwelling" as is applied to the determination of whether or not a particular development is designated, namely what is the dominant purpose of the use of land. The Applicant submitted as a matter of fact and degree the caretaker/manager's "flat" is a use subsumed within the dominant use of the hotel and is not an independent use of land.

13. Alternatively, the Applicant argued that the caretaker's dwelling is not "occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile".

14. Reliance was placed on the decision of Pearlman J in Ardi to submit that in this matter the context of the use of the word dwelling requires an analysis of the use rather the physical layout of the rooms. That analysis shows that the use is not as a separate domicile but rather as an integral part of the hotel use. Whether or not there is permanent occupation of the domicile is irrelevant. The Applicant also relied on Mackenzie at par 29 and 31 to support its submissions that the caretaker/manager's occupation would impose obligations which do not accord with use as a separate domicile but rather relate to the use of the land as a hotel and it should not therefore be categorised as a dwelling.

Finding on question 1 15. The usual approach to determining the use of land in a planning context where there are two or more uses of that land is the approach in Foodbarn, that if there is more than one use of land, it is necessary to determine whether one or more uses subserve another use and, if so, that use is the dominant use. Applying this approach in this context, it is clear that the hotel use is the dominant use of the land at 340 Princes Highway. The caretaker's "flat" is clearly subsumed within that purpose and should not be considered as a separate, independent use of the land. The question then arises of whether this approach should be applied to the statutory provisions in par 16(1)(b)(ii) of Sch 3 of the EP&A Regulation.

Par 16 is clearly directed at the identification of dwellings within close proximity to crushing, grinding or separating works to enable the impact of those activities on any relevant dwelling to be thoroughly assessed through the designated development procedures in the EP&A Act, including the preparation of an environmental impact statement. The reference to dwelling in par 16(1)(b)(ii) is not qualified in any way by reference to any other use of land. I consider the clear wording of par 16 should be given effect. Where there is a dwelling within 250m of a crushing, grinding or separating works that development is designated. The fact that the dwelling is part of a different "dominant" use of land should not prevent the application of par 16(1)(b)(ii) in my view. In other words, the dominant purpose test identified in Foodbarn should not be applied to the definition of dwelling in the context of par 16(1)(b)(ii).

In this case the hotel incorporates within it rooms which do in their physical appearance satisfy the definition of dwelling. Further, they are occupied by the caretaker and their use is clearly that of a dwelling. I accept the Council's submissions at par 7. The purpose of par 16(1)(b)(ii) is to ensure that the environmental impact of crushing, grinding or separating works on nearby residences is adequately assessed, including the dwelling in the hotel.

The reference in cl 16(1)(b)(ii) to crushing, grinding or separating works being "within 250m of a residential zone or dwelling not associated with the development" is further support for the construction that par 16 is directed at the actual physical use of premises or part of premises as a dwelling rather than the purpose of the use of the land in the planning context. Whether or not there is a residential zone within 250m is a question of fact determined on the evidence. Further a "dwelling not associated with the development" suggests that my construction is preferable that even where dwellings are for planning purposes considered subordinate to the dominant use of land they are, for the purposes of par 16, to be considered as a separate physical use.

The Applicant's alternative argument at par 13 and 14 in reliance on Ardi is answered already in my response to Foodbarn at par 16. In relation to the Applicant's argument relying on Mackenzie, also set out at par 14 that the caretaker has duties related to the dominant hotel use, does not overcome the significance of the physical use of the caretaker's "flat" as a dwelling in the context of par 16(1)(b)(ii) in my view.

Accordingly in my view the proposed development is designated development as par 16(1)(b)(ii) is satisfied because the proposed development comprises "crushing, grinding or separating works" located within 250m of a dwelling not associated with the development.

Question 2 - does the Court have jurisdiction to determine the proceedings 21. As the answer to question 1 is in the affirmative it is necessary that I answer question 2.

22. The Council argued that as the proposed development is designated development that is a jurisdictional fact and the Council has no power to deal with the development application in the absence of an environmental impact statement (EIS) relying on Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312 and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 as the development application was not properly made. Section 78A(8) of the EP&A Act requires that a development application for a designated development be accompanied by an EIS. This has been held to be a mandatory requirement. As no development application has been made, there is no right of appeal pursuant to s 97(1) of the EP&A Act.

23. The Applicant argued that pursuant to s 39(2) of the Land and Environment Court Act 1979 the Court has all the functions and discretions of the Council. The Council has the ability to request an EIS and therefore the Court also has that power. As the Council only raised the issue of par 16(1)(b)(ii) after the commencement of this appeal and it was previously unknown to both parties, procedural fairness requires that the Applicant be allowed to respond to the changed circumstances and provide documentation (an EIS) to the Court.

Finding on question 2 24. It is well settled law that if a designated development application is not supported by an EIS then the development application is ineffective and incomplete and not properly made. Further, the Council has no power to deal with the application: see Remath at 316, 322; Helman v Byron Shire Council (1995) 87 LGERA 349 at 358 - 359 (Handley JA). This Court cannot therefore consider the development application as if it stands in the Council's shoes under s 39(2) because there is no determination by the Council pursuant to which an appeal under s 97 can be lodged in the Court.

25. In this case the development application lodged by the Applicant was not accompanied by an EIS and, accordingly, was not valid. I do not consider there is a valid decision of the Council to grant development consent against which the Applicant can appeal. Therefore the Court does not have jurisdiction to determine this appeal.

26. Even if the Court had jurisdiction, there are substantial practical difficulties in the Court receiving an EIS and overseeing the necessary public notification processes required by the EP&A Act for designated development, as it would presumably have to do if "standing in the shoes" of the Council as the Applicant argued. These significant practical hurdles render the Applicant's suggestion unworkable.

27. The Council is successful in relation to the preliminary questions of law raised.

Summary of findings 28. Question 1: Is the proposed development designated development? Answer: Yes. Question 2: If the answer to question 1 is in the affirmative, does the Court have jurisdiction to determine the proceedings in the absence of an environmental impact statement as required by section 78A(8) of the Environmental Planning and Assessment Act 1979? Answer: No.

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