DILLON v GOSFORD CITY COUNCIL

Court of Appeal (NSW)|1995-02-23|Before: Bannon J, Powell JA, Handley JA, Sheller JA

DILLON v GOSFORD CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 22 and 23 February 1995, 7 April 1995

Environmental Planning and Assessment Act 1979; Local Government Act 1919; development approval.

The respondent cross appealed against the orders on the basis of their internal inconsistency.

Ordinance 105 "Town and Country Planning- General Interim Development" prohibited private extractive industry except with the permission of the interim development authority. In 1963 the respondent granted approval to the appellant to use the land as a quarry pursuant to this Ordinance.

Ordinance 105 ceased to have effect from 24 May 1968 when the Shire of Gosford Planning Scheme Ordinance (the GPSO) was prescribed to take effect; Local Government Act, s342U(8). CL51 provided that nothing in the Ordinance prevented the carrying out of work in accordance with the 1963 approval if the carrying out of work was commenced but not completed before 24 May 1968, the appointed day or was substantially commenced within a twelve month period after that day.

On 18 February 1977 the GPSO was suspended and Interim Development Order (IDO 100) was gazetted. On 30 March 1979 Interim Development O.122- Gosford (IDO 122) was gazetted. CL54 of IDO 100 and CL44 of IDO 122 provided that nothing in the Orders should prevent the carrying out of any development in accordance with any consent which was in force at the appointed day, 18 February 1977 and 30 March 1979 respectively, if the development had been commenced within a twelve month period after that day.

In 1962 a twenty-five year lease was granted to Gosford Excavations Pty Ltd. Some preliminary test bores and geological evaluation were carried out. In 1983 Gosford Excavations surrendered the lease. In 1988 the land was sold to the appellant.

Bannon J acted on the basis that the respondent bore the onus of proving that the development consent had lapsed. He found that there was never any "substantial commencement" of quarrying on the land and that the appellant could not rely upon existing use rights pursuant to s107 of the EPA Act.

The respondent was given leave to file a notice of contention raising a question of law about the meaning of CL54 of IDO 100 and CLS51 of the GPSO. The respondent submitted that the 1963 approval was not a positive authority but operated to displace the prohibition otherwise imposed by Ordinance 105 and hence terminated when Ordinance 105 ceased to have effect.

within the meaning of CL51 of the GPSO, quarrying was commenced but not completed before 24 May 1968;

the consent was preserved by IDO 100 and subsequent planning instruments;

the respondent was estopped from denying that work done before 15 April 1995 was correctly categorised as "for the purpose of a blue metal quarry" by a letter sent by ie

respondent on 15 April 1985 informing the predecessors in title to the land that the 1963 approval was still valid for the purpose of extracting blue metal.

per Handley and Sheller JJA; CL51 of the GPSO had the effect of maintaining the consent "in force" within the meaning of CL54 of IDO 100 at 18 February 1977.

The appellant bore the onus of establishing that work had commenced.

Subsequent use of the land for the purposes of a quarry was not permitted by

s342U (4), the "existing use" section of the LGA, as work carried out on the land prior to 18 February 1977, although authorised by the 1963 approval, did not constitute commencement of work for the purposes of a quarry, rather it was preliminary and incidental to quarrying

IDO 100 as quarrying had not been substantially commenced by 18 February 1978.

The estoppel argument did not affect the conclusion that the current development was being carried out without consent and in breach of s76 of the EPA Act.

The result of his Honour's findings that work towards the opening of a quarry never commenced and that the land was never used for the purposes of a quarry before 24 May 1964, was that the approval ceased to provide protection against the prohibition in the GPSO. Neither the "existing use" nor the "incomplete development" provisions permitted the subsequent use of the land for the purposes of a quarry.

The appellant, Kevin Walter Dillon, appeals from a decision of the Land and Environment Court (Bannon J) in a class 4 application brought by the respondent Council of the City of Gosford (the Council). The Council sought a declaration that the appellant had carried out development on land known as Lot 155 in Deposited Plan 755251 Hawkesbury River, in the City of Gosford, Parish of Patonga, County of Northumberland (Portion 155), namely an extractive industry, without the consent of the Council and in breach of s76 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The Council also sought injunctive relief against continuing operations. On 13 May 1994 the Court made the declaration sought and on 16 September 1994 made orders restraining the appellant from extracting, carting, disposing of or otherwise dealing with any soil, earth, clay, shale, sand, rock or overburden on or from the land and destroying, damaging, disturbing or clearing any vegetation upon the land. The appellant was ordered to re-instate the land and stabilise the quarry face in accordance with annexed specifications "within three months of the date of these orders". His Honour suspended these orders for a period of eighteen months "from the date of this order". The orders appear to be internally inconsistent and give rise to problems in complying with the re-instatement and stabilisation specifications after further extraction during the eighteen month suspension. Accordingly, the Council cross appeals against the orders.

In 1963 PtII of Ordinance 105 "Town and Country Planning - General Interim Development" did not permit the carrying out of a private extractive industry on the subject land. CL6(1) in PtIII provided: "Development which is not permitted by this Ordinance shall not be carried out except with the permission of the interim development authority."

In November 1963, on the application of Gosford Excavations Pty Ltd, the Council, as the interim development authority under PtXIIA of the Local Government Act 1919 and Ordinances, granted interim development approval to the use of portions 153 and 155, Parish of Patonga for the purpose of a Blue Metal Quarry, subject to five conditions. The only extant record of the approval

is a signed copy of the recommendation contained in the town planner's report. CL3 of Ordinance 105 provided that, unless the contrary intention appeared, "Quarry" had the meaning ascribed to it in the Mines Inspection Act 1901-1945. It therefore included "any place, open cut, or excavation wherein or whereby any operation is carried on above ground for or in connection with the purpose of obtaining any metal or mineral other than coal or shale and any place adjoining thereto in which any product of the quarry is stacked, stored or crushed." Ordinance 105 did not fix the time within which the use of the land for the approved purpose was to be commenced.

On 15 May 1968 the Shire of Gosford Planning Scheme Ordinance was prescribed to take effect on 24 May 1968, the "appointed day", and Ordinance 105 ceased to have any further effect in relation to the subject land: Local Government Act 1919 s342U(8). The Planning Scheme Ordinance zoned the subject land "1 (a) Non-urban 'A'." Extractive industries were prohibited within zone | (a) Non-urban 'A'. CL51 provided as follows:

"Nothing in this Ordinance shall prevent the erection of a building or the carrying out of work and the use of such building or work in accordance with the terms of the Town and Country Planning (General Interim Development) Ordinance or of any permission or modification thereof granted under Division 7 of PtXIIA of the Act and under that Ordinance which permission has not been revoked if the erection of the building or the carrying out of the work was commenced but not completed, before the appointed day or is substantially commenced within a period of twelve months after that day."

Relevantly this meant that nothing in the Planning Scheme Ordinance prevented the carrying out of work in accordance with the interim development approval under Ordinance 105 if "the carrying out of the work was commenced but not completed before the appointed day." A good deal of the argument on the appeal turned on the meaning of these words and whether there was evidence that the work was commenced but not completed after the approval and before the appointed date.

On 18 February 1977 Interim Development O.100 was gazetted and the Planning Scheme Ordinance was suspended in respect of land which included the subject land. IDO 100 zoned the subject land "7 (a) Rural Conservation".

Extractive industries were not specified and hence prohibited in zone 7 (a) Rural Conservation. CL54 provided:

"Nothing in this Order shall prevent the carrying out of any development in accordance with any consent or permission granted by or under any former planning instrument which consent or permission which [sic] is in force at the appointed day, if the development has been commenced within a period of twelve months after that day."

The appointed day was 18 February 1977. Argument was directed to the meaning of this clause.

Interim Development O.122-Gosford, which applied to the subject land, was gazetted on 30 March 1979, the appointed day thereunder. Like CL54 of the earlier Order, CL44 provided that nothing in the Order should prevent the carrying out of any development in accordance with any consent or permission granted by or under any former planning instrument which consent or permission was in force at the appointed day, if the development had been commenced within a period of twelve months after that day.

On 1 September 1980 the EPA Act in substance commenced. Concurrently CL7(1) of Schedule 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 provided that any consent, approval or permission granted in respect of an application made under a former planning instrument, and in force immediately before the appointed day, should continue in full force and effect subject to its provisions or the provisions of the instrument, any condition of the grant or, in case where there were no such provisions or conditions, s99 of the EPA Act.

In 1992 s109B was inserted in the EPA Act. Subs(1) of that section provides that nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. Subs(2) provides, so far as material, that the section

applies to consents lawfully granted before the commencement of the Act;

does not prevent the lapsing, in accordance with the Act, of a consent; and

has effect despite anything to the contrary in s107 or s109.

Subs(3) provides that the section is taken to have commenced on the commencement of the EPA Act.

Bannon J recounted the background of the proceedings. Portions 153 and 155, which had belonged to members of the Dillon family for many years, are in the hinterland of Woy Woy, Pearl Beach and Patonga and are almost surrounded by the Brisbane Waters National Park. On 27 August 1962, Mr GD Dillon, the grandfather and a predecessor in title of the appellant, granted a registered lease for twenty-five years to Gosford Excavations of the whole of Portion 155 and all the deposits of Blue Metal, Quartzite, Felspar, Shale and soil lying in under or on the land. Gosford Excavations took exclusive possession of the land together with the right to quarry and remove the deposits. Covenant 9 granted the lessor the right on notice to erect a cottage on the property and carry out farming operations but so as not to interfere with the lessee's mining operations. Over the years large areas of Portion 155 had been cleared of scrub and parts of it used for growing vegetables and grazing cattle. On 11 March 1988 the portion was sold to the appellant.

In the trade "blue metal", which is not a scientific term referring to a mineral, embodies brecchia, a volcanic eruption of angular fragments of mineral, as well as basalt. In part of Portion 155 geological tests had confirmed the presence of basalt overlaid by brecchia. Preliminary test bores and geological evaluation carried out by Gosford Excavations on both Portions 155 and 153 involved core drilling and extraction of subsurface samples for evaluation and removal of some overburden. The work involved the exposure of brecchia and the taking away of samples for testing. Some of the material removed was used by Gosford Excavations to repair and widen an access road within the land. The company also opened up channels in the hillsides to obtain brecchia materials for testing. Tests showed there was blue metal on part of the land down to at least 80 metres and in some places down to 180 metres. There was some outcropping of brecchia on part of the land, limited to a creek bed or banks. Drill hole logs indicated an overlay of soil and weathered rock or shale down to variable depths.

The Dillon family, with the consent of Gosford Excavations, removed some material excavated by the company and some overburden and used it to improve the access road and for land fill on other properties. Bannon J said that the overburden was removed, not for the purpose of excavating blue metal, but as a

bait or inducement to the quarrying company to carry out excavation. This attempt failed. The overburden removed contained a quantity of shale. Gosford Excavations did not prosper and on 14 April 1983 surrendered the lease. In 1984 it went into liquidation.

The case the Council presented to the Land and Environment Court was that after the grant of interim development approval in 1963, Gosford Excavations did not quarry blue metal on Portion 155. Quarrying did not commence before 1989 and, when it did, was for shale and not for blue metal. If quarrying for blue metal commenced, it was abandoned. The appellant submitted to the Court that development consent once granted continued indefinitely for the benefit of all holders of the land unless it lapsed in accordance with some planning instrument or s99 of the EPA Act. The Council bore the onus of proving that the development consent had lapsed, a submission upon which Bannon J acted though he did not tule upon it. While it may be correct that, in some circumstances, a Council bears the onus of establishing that an approval, consent or permission has lapsed (Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 360 per Gibbs J, as he then was), in the present case the appellant, who relied upon an exception to a prohibition against quarrying which depended upon the work having commenced within a particular time, bore the onus of establishing that the work had commenced.

His Honour found that there was never any "substantial commencement" of quarrying by Gosford Excavations or by anyone else after the commencement of the Planning Scheme Ordinance. It remained to consider whether quarrying had previously been commenced, within the meaning of CL51 of the Ordinance, and the consequence of this when IDO 100 was prescribed. His Honour said: "While different views have been expressed in the context of compensation, taxation and planning legislation as to the extent to which ancillary and preliminary activities can constitute mining, and one would apply these views to quarrying, I do not consider the geological tests and surveys, whether on the subject land or adjoining land, can possibly constitute quarrying."

A number of cases were referred to and the meaning of "quarrying" discussed. There was no dispute that the obtaining of blue metal was a quarrying operation. The judgment continued:

"To say that quarrying commenced involves proving the working commenced to win stone. Merri Creek Quarry Pty Ltd v Foletta (1951) 82 CLR 347, 353. But working material already quarried is not necessarily quarrying (or as in the case now mentioned, mining) The Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29. While it is accepted that some brecchia was excavated and that it was used to repair and widen the access road, in my opinion, these operations were of an exploratory antecedent character, and to adapt the words of Hope J, as he then was, in Wyong; Shire Council v Associated Minerals Consolidated Ltd (1972) 1 NSWLR 114 at 128 were truly preliminary to quarrying. The more likely inference is that the work on the access road was to facilitate testing, and not to build a quarry haulage load to carry extracted blue metal. In the context of the 1968 Ordinance I do not consider quarrying had commenced before the appointed day, or was substantially commenced within a period of 12 months after that day. Smith v Wyong Shire Council (No 3) 53 LGRA 170 at 178 per Cripps J. Accordingly, the consent given in 1963 lapsed."

His Honour equated the commencement of "quarrying" with the commencement of work "to win stone". The appellant submitted to this Court that the true question to be addressed was whether Gosford Excavations or

members of the Dillon family on its behalf or with its consent had commenced to carry out work in accordance with the interim development approval that is to say to use the land "for the purpose of a Blue Metal Quarry". However the expression "to use land for the purpose of a quarry" is not different in meaning from the expression "to use land for a quarry". Bannon J was alive to the distinction in this context between "exploratory work" and "ancillary work and preliminary activities part of the described purpose".

Bannon J held that the appellant could not rely upon existing use rights pursuant to s107 of the EPA Act. Even if such a claim could be established, it was clear that such use was abandoned. He did not consider any activities or any intentions of the Dillon family in removing shale and overburden, building dams and repairing roads, amounted to quarrying. At most they carried out these activities in the hope of inducing Gosford Excavations to commence quarrying.

His Honour said it was not necessary that he deal with an argument based upon s109 B of the EPA Act, in view of his findings of fact. An argument that the Council was estopped by the terms of a letter of 15 April 1985 from denying the continuing validity of the interim development approval was rejected.

Without objection the Council was given leave to file a notice of contention, which raised a question of law about the meaning and effect of CL54 of IDO 100 and CLS1 of the Gosford Planning Scheme Ordinance.

The respondent submitted that the interim development approval granted in 1963 was not a positive authority but operated to displace the prohibition otherwise imposed by Ordinance 105. When Ordinance 105 ceased to affect the subject land the approval terminated. CL51 of the Planning Scheme Ordinance did not preserve it. In the language of CL54 of IDO 100 there was not "any consent or permission granted by or under any former planning instrument" which was "in force" after the Planning Scheme Ordinance commenced and therefore in force on 18 February 1977, the appointed day referred to in CL54. A fortiori the consent or permission was not in force on 30 March 1979 (the appointed day referred to in CL44 of IDO 122), or at the commencement of the Miscellaneous Acts (Planning) Repeal and Amendment Act (Schedule 3, CL7(1)) or of the EPA Act (s109B). The draconian consequences of this were avoided, in appropriate cases, by the protection afforded to prior existing use by s342U(4) of the Local Government Act 1919 as in force at the commencement of IDO 100. This protection depended upon the lands being lawfully used, that is to say in accordance with the approval, immediately before the coming into operation of IDO 100. The argument focused upon the meaning of the words "in force" in CLS54.

In my opinion, CL51 of the Planning Scheme Ordinance had the effect of maintaining the interim development approval "in force". A continued carrying out of the work, without Council consent under that Ordinance, would be prohibited but for CL51 and the existence of the 1963 approval, which had not been revoked. Together they allowed the work to be carried on if the conditions of commencement were met. Ordinance 105 CL6(1) provided that development was not to be carried out "except with the permission of the interim development authority". Such a permission, when given, was "in force", that is to say it operated to except. It remained in force under CLS1, if the conditions were satisfied, because it continued to operate to except under that clause. In my opinion the interim development approval was capable, by virtue of CL51 of the

Planning Scheme Ordinance, of being in force within the meaning of CL54 of IDO 100 at 18 February 1977. I would reject the Council's argument put in this way.

However, with respect, the argument that the appellant needed to show a lawful existing use immediately before the commencement of IDO 100 should focus not upon whether the approval was in force on 18 February 1977 but on whether "the development has been commenced within a period of twelve months after that day." There was no suggestion it had. The appellant's case was that the approved development had been commenced by Gosford Excavations well before the commencement of the Planning Scheme Ordinance. In the circumstances of this case, if it had not been then commenced, the approval would not have remained in force under CL51 of that Ordinance. The appellant did not argue that the work had been substantially commenced within a period of twelve months after the appointed day, 24 May 1968.

The appellant submitted that CL54 must be read to include a consent or permission for development which had been commenced before the appointed day of 18 February 1977. However the language is clear. If the consent or permission remained in force at the appointed day but development had not been commenced then the grantee had the benefit of a twelve month period within which to commence the development. If the development had been commenced before the appointed day, CL54 did not apply. Continued work was prohibited unless the land was being used for the approved development immediately before 18 February 1977; s342U(4) of the Local Government Act. The operation of CL54, so construed, is sensible. The grantee of an approval, who had not commenced the development before the appointed day, was given twelve months to do so. On the other hand development previously commenced which was not continuing on 18 February 1977 could not be re-commenced on the basis of the existing approval.

The appellant's submissions on the evidence were primarily to show that within the meaning of CLS1 of the Planning Scheme Ordinance the carrying out of work in accordance with the terms of the interim development approval was commenced but not completed before 24 May 1968. In terms of the approval the question was whether the land was used for the purpose of a blue metal quarry before that date.

Bannon J found that Gosford Excavations had carried out preliminary test bores and geological evaluation on the land, had exposed brecchia and taken away samples for testing and had used material removed to repair and widen an access road within the land. The appellant prepared a chronology which showed in some detail the work done. Undoubtedly this involved using the land and Gosford Excavations was doing so for no purpose other than one related to the possible establishment of a blue metal quarry. There was also evidence from Messrs Harold and Norman Dillon, respectively, the uncle and father of the appellant. They became the owners of Portion 155, when their father died on 8 July 1970, and sold it to the appellant. They did work on the land in the period between the grant of the interim development approval and the commencement of the Planning Scheme Ordinance. Bannon J characterised their activities as removing some of the material excavated by Gosford Excavations and using it to improve the access road and for land fill on other properties and removing quantities of overburden, not for the purpose of excavating blue metal, but as a bait or inducement to the company to commence quarrying. The respondent

argued that the work evidenced was of a preparatory nature which did not satisfy CLS51. Such work as the Dillon brothers carried out on the land in the period seems to have been done primarily for their own purposes or needs. It certainly was not done in conformity with any written or recognised plan for the development of the quarry; compare Day v Pinglen Pty Ltd (1981) 148 CLR 289 at 298. The most that can be said about it is that in removing overburden the brothers made easier the task of establishing the quarry. The work done by Gosford Excavations was more directly related to the establishment of the quarry.

In Wyong Shire Council v Associated Minerals Consolidated Ltd (1972) 1 NSWLR 114 (on appeal to the Privy Council Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538) the distinction between prospecting purposes and mining purposes in the context of an alleged existing use, where Council consent had not been granted, was discussed. At first instance Hope J, as he then was, ((1972) 1 NSWLR at 128) said:

"The question whether the purposes of the uses were different is, I think, a question of fact, and if any use between 1961 and 1968 is to be regarded as the use of the land for the purposes of a mine or for some purpose preliminary or ancillary to and necessary for the purpose of mining, then I think that these purposes were different from the prospecting purposes for which the land was used before this time. The distinction in fact between prospecting purposes and mining purposes is apparent; prospecting is something which is carried out in order to determine whether it is worthwhile mining land, whilst mining, and activities ancillary or preliminary to but necessary for mining, are or may be regarded as part of the business of carrying on a mine. Prospecting may be of a superficial or of a most intensive character, but it may or may not result in mining in the ordinary sense of the word, and it is apparent that planning considerations applicable to prospecting would be quite different from the considerations applicable to mining. Prospecting would not normally interfere with the other use of the land which is being investigated, but mining operations may, and normally do, interfere with those activities to a large extent."

Activities may be of an exploratory character if they are simply directed to the valuation of an asset. Activities of a more detailed character and designed not merely to find out what minerals exist upon the lands may be truly preliminary to mining. Activities may none the less be regarded as exploratory only where they are necessary in order to determine how the land was going to be mined, in the same way as drilling operations on a building site may be necessary to determine how that site can be developed.

At 130 Hope J referred to Broken Hill Pty Co Ltd v Commissioner of Taxation (1968) 120 CLR 240 at 244-5 where Kitto J, at first instance, said of the expression "the working of a mining property":

"Tt embraces not only the extraction of mineral from the soil, but also all operations pertaining to mining: Parker v Federal Commissioner of Taxation (1953) 90 CLR 489 at 494. Thus it comprehends more than mining in the narrow sense which imports the detaching of lumps of material from the position in which in a state of nature they form part of the soil. It extends to any work done on a mineral-bearing PROPERTY IN PREPARATION FOR or as ancillary to THE ACTUAL WINNING OF THE MINERAL (as distinguished from work for the purpose of ascertaining whether it is worthwhile to undertaking mining at all); Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 153, 156, 159 and 161." (emphasis supplied)

The Full High Court (120 CLR at 272) agreed with what Kitto J said in this regard. In the Wyong Council case in the Privy Council [1975] AC at 557 Lord Wilberforce pointed to the distinction nor merely of degree but in kind between use for exploration purposes and use for actual mining purposes.

In this case the Council had granted consent and Mr Davison SC, who appeared for the Council, accepted that the work carried out on the subject land both by Gosford Excavations and by members of the Dillon family would have been illegal but for the interim development approval. "when you have got a main purpose expressed, and ample authority given to effectuate that main purpose, things which are incidental to it, and which may reasonably and properly be done and against which no express prohibition is found, may and ought, prima facie, to follow from the authority for effectuating the main purpose by proper and general means." (per Lord Selborne LC in Small v Smith (1884) LR 10 App Cas 119 at 129; compare D'Emden v Pedder (1904) 1 CLR 91 at 109-110 per Griffith CJ). Although the work carried out on the land was authorised by the approval, it seems to me that it was essentially preliminary and incidental and did not constitute a commencement of work for the purpose of a quarry. It was not work done "in preparation for the actual winning" of the blue metal to use the language of Kitto J referred to above.

What is quite plain is that by 1977 the only work on the land was being done by the Dillon brothers and the appellant. This work was intermittent and, in my opinion, lacked the continuity and purpose required to support a conclusion that the land was being used for the purpose of a blue metal quarry immediately before the commencement of IDO 100; compare Rosenblum v Brisbane City Council (1957) 98 CLR 35 at 45-6:

"Tt is not difficult to agree that the use of premises for a given purpose is not necessarily interrupted whenever activities for that purpose are temporarily stopped. When such an ordinance as is here in question refers to the purpose of which land or a building 'was used' on a given day, it calls for an inquiry, not limited to the physical activities which might have been observed on the land or in the building on that day, but taking account of any course of user which may fairly be regarded as having been current on that day. Most forms of user of land or buildings involve not continuous activity but recurring activities. There is no inaccuracy in describing a grocer's shop as being used as such on every day of the period in which the grocer has his business there, notwithstanding that on Sundays and holidays it is locked up and no activity of any sort occurs. Whether an interruption of activity puts an end to the user must always be a question of fact, and in resolving the question in each case that arises the circumstances of that case must necessarily be considered as a whole.

In my opinion from 18 February 1978, twelve months after the appointed day in IDO 100, work on the subject land could no longer be commenced pursuant to the 1963 interim development approval. CL54 of IDO 100 was not satisfied. Accordingly the continuance of quarrying work was prohibited unless in the terms of s342U(4) the land was being used for the purpose of a blue metal quarry immediately before the appointed day. I am quite satisfied it was not.

On 15 April 1985 the Council wrote to Messrs Harold and Norman Dillon referring to their earlier letter dated 20 August 1984 regarding the question of the continued validity of the consent granted in November 1963:

"The matter has been discussed with Council's solicitor, and it is concluded on the basis of the information which you have provided, that the consent remains valid for the purpose of extracting 'blue metal'."

The appellant argued that the respondent was estopped by this letter from denying that the work done before 15 April 1985 was correctly categorised as for the purpose of a blue metal quarry. Even if this was so it is no answer to what I regard as the decisive features of this appeal. The only use of the subject land by Gosford Excavations consisted of work done before 15 May 1968. In particular Gosford Excavations did not use the land for any purpose immediately before the commencement of IDO 100 on 18 February 1977 or within twelve months thereafter. Even if the work done by Gosford Excavations or by the Dillon brothers or the appellant should be treated as being for the purpose of a blue metal quarry, in so far as it was done before 18 February 1977, it lacked the continuity and purpose required to support the conclusion that the land was being used for the purpose of a blue metal quarry "immediately" before the commencement of IDO 100 and, in so far as it was done after 18 February 1977, it did not amount to a substantial commencement of the approval development within the twelve month period after the appointed day. Accordingly, in my opinion, if the respondent was estopped by the letter from denying that the work done before 15 April 1985 was correctly categorised as for the purpose of a blue metal quarry, that would not affect the conclusion that the current development of which the Council complains is being carried out without Council consent and in breach of s76 of the EPA Act.

The effect of O.2 and O.3 made by Bannon J on 16 September 1994 requiring the appellant to re-instate the land and stabilise the quarry face in accordance with annexed specifications "within three months of the date of these orders" were thrown in doubt by O.6 which suspended them "for a period of eighteen months from the date of this order". Furthermore the specifications did not take account of the suspension of O.1 which restrained further extraction and the inevitable removal of further material and other work during the eighteen month suspension. The first specification stated that it was based on the levels and conditions of the site as inspected on 26 August 1994. The respondent complains, in my opinion with justification, that these matters make the order in the form that it was made, difficult if not impossible to understand and therefore enforce. The appellant was unable to advance any argument to the contrary. Accordingly the cross appeal should be allowed and O.2, O.3 and 0.6 set aside. The matter should be remitted to the Land and Environment Court to make new orders dealing with re-instatement, stabilisation of the quarry face and the period of suspension. In determining what orders should be made the limits and conditions outlined by the Council in its cross appeal merit further consideration.

In my opinion the appeal fails and, as the appellant ultimately accepted, the cross appeal succeeds. I propose the following orders:

Leave to the respondent to file a notice of contention out of time;

Set aside O.2, O.3 and O.6 of the orders made by the Land and Environment Court on 16 September 1994;

Stay O.1 of the orders made by the Land and Environment Court on 16 September 1994 for twenty-eight days from the date of this order with liberty to the appellant to apply to the Land and Environment Court for an extension of the stay;

Otherwise remit the matter to the Land and Environment Court to make such orders as it deems appropriate in relation to the re-instatement of the land and the stabilising of the quarry face and any suspension for a fixed period of the Court's orders.

Powell JA I have read the Judgment which has been prepared by Sheller JA in this matter with which Judgment Handley JA has indicated his agreement. While I agree that the Appeal should be dismissed, the Cross Appeal allowed and the Orders proposed by Sheller JA made, my reasons for dismissing the Appeal differ from those which Sheller JA has recorded in his Judgment.

Put shortly, it is my view, for the reasons which I will later explain, that, as from 24th May 1969 - that is to say, the expiration of 12 months after the coming into operation of the Gosford Planning Scheme Ordinance (""GPSO") - neither the carrying out of any "work" directed toward establishing, or associated with, a blue metal quarry, nor the use of Lot 155 for the purpose of quarrying, was lawful unless - which did not, and, after 24th May 1968, could not lawfully, occur - a fresh development approval was granted by the Council.

Lest it be suggested that no arguments to this effect was raised on the Appeal, I should record that, although the submission was not very clearly developed on the hearing of the Appeal (but see Transcript 43-53, 58 et seq), the written submissions which were filed on behalf of the Council contained the following (inter alia): "3. Lot 155 is presently zoned '7(a) Conservation' under the provisions of the Interim Development Order No 122 Gosford ('IDO 22'(sic)) which was published in the Gazette on 30 March 1979. Io respect of land so zoned the carrying out of extractive industries is prohibited (CLS). Notwithstanding this prohibition, the appellant relies upon the terms of the development consent granted by the Council on 14 November 1963 (API: 19,20) for the use of the land as a blue metal quarry, thus invoking the provisions of s107(1) of the Act.

The respondent's response is, in essence, that the use of the land for the purpose of a blue metal quarry authorised by the 1963 consent has never been commenced so as to permit the undertaking (sic) the present activities conducted upon the land. Alternatively, if such activity was commenced, it has since been abandoned and thus the Divisions of s107(2)(d) apply.

The 1963 consent was required by and granted pursuant to the provisions of Ordinance 105 of the Local Government Ordinances (see generally Hastings Municipal Council v Mineral Deposits Ltd (1981) 43 LGRA 198). No provision of the Ordinance fixed the time within which the use of the land for the purpose of a blue metal quarry was required to be commenced.

On 24 May 1968 the Gosford Planning Scheme Ordinance commenced. Whilst this Ordinance zoned the subject land '1(a) Rural'), it did not prohibit use of the land for extractive industries. Nonetheless, it imposed a time limit within which consents granted under Ordinance 105 could be undertaken: CL51. The clause had the effect that either the work the subject of the consent be commenced before the appointed day or be substantially commenced within a period of twelve months after that day.

It follows that because there was neither commencement nor substantial commencement as required by CL51 of the Planning Scheme Ordinance, there was no consent which survived, at the latest, beyond twelve months from the date upon which that Ordinance took effect. Thus there is no consent upon which the appellant can now rely in order to justify his present activities."

In order to understand why this should be so, it is necessary to commence with the provisions of PtXIIA of the Local Government Act 1919 ("LGA") the bulk of which provisions came into operation on Sth April 1945 and, in particular, of Division 7 of PtXIIA LGA, the provisions of which Division came into operation on 9th November 1945. So far as is relevant for the purposes of the present Appeal, PtXIIA provided (inter alia): "342A(1) Subject to the provisions of this Act:

(a) This Part shall apply to Municipalities and Shires...

(a) A council may by resolution decide to prepare a scheme with respect to any land within its area

(2)(a) A resolution passed under subsection one of this section shall not take effect unless and until it is approved by the Minister and notice of such approval is published in the Gazette...

'Development' in relation to any land includes the erection of any building, and the carrying out of any work, and the use of the land or building or work thereon for a purpose which is different from a purpose for which the land or building or work was last being used.

'Interim Development' means development of land to which a scheme applies between the date upon which a resolution of the council or two or more councils acting together to prepare a scheme has taken effect or the date upon which notice of the fact that the Minister has directed the council or two or more councils to act together to prepare a scheme was published in the Gazette, and the date of the coming into operation of the scheme or the date upon which the Minister notifies in the Gazette that he has decided not to proceed with the scheme as the case may be.

342U(1) Interim development shall not be carried out:

(b) except as may be permitted by the council under the authority of an Ordinance and subject to such conditions, restrictions and provisions as may be contained in such Ordinance.

342V(1) Subject to the provisions of any such Ordinance a council may where an interim development application is made grant the application unconditionally or subject to such conditions as it may think proper to impose or refuse to grant such application...

(s342T, s342U and s342V all being within Division 7.)

The Town and Country Planning (General Interim Development) Ordinance ("O 105") was proclaimed on 9 November 1945. Insofar as is relevant to the present Appeal, 0.105 contained the following (inter alia) provisions:

"3. In this Ordinance unless the contrary intention appears:

'Interim Development Authority' means the council of the area in which the land proposed to be developed is situated... and 'Development' Interim Development' and 'Interim Development Application' have the meanings ascribed to them respectively io Division 7 of PtXIIA of the Act...

6(1) Development which is not permitted by this Ordinance shall not be carried out except with the permission of the Interim Development Authority..."

On Ist October 1946 the Council of the former Shire of Woy Woy resolved to prepare a scheme with respect to the land within its area. That Resolution was approved by the Minister, notice of such approval being published in the Gazette of 29th November 1946.

Thereafter, on 24 February 1954, the Council of the Shire of Gosford resolved to prepare a scheme with respect to the land within its area. That Resolution was approved by the Minister, notice of such approval being published in the Gazette of 31st December 1954.

The result of all this was that, as from 29th November 1946 within the area of the former Shire of Woy Woy, and as from 31st December 1954 within the Shire of Gosford, no development could be carried out on any land within the relevant area without the approval of the relevant council.

Although the evidence does not disclose when it was that this occurred, it would appear that, at some time prior to 1968, the area of the former Shire of Woy Woy was incorporated into the area controlled by the Council of the Shire of Gosford.

GPSO was proclaimed on 15th May 1968, and published in the Gazette on 24th May 1968, the planning scheme incorporated in GPSO being said to have been prepared by the Council of the Shire of Gosford in respect of all land within its area in pursuance of the Resolutions of the Council of the former Shire of Woy Woy and of the Council of the Shire of Gosford which I have earlier referred.

Insofar as is relevant to the present Appeal, GPSO provided (inter alia):

"10. Subject to the provisions of PtIV, PtV, PtVI, of this Ordinance the purposes:

(a) for which buildings or works may be erected, carried out or used without the consent of the responsible authority; and

(b) for which buildings or works may be erected, carried out or use only with the consent of the responsible authority; and

(c) for which buildings or works may not be erected, carried out or used; in each of the zones specified in column | of the Table to this clause are respectively shown opposite thereto in columns III, IV and V of the Table.

Subject to the provisions of PtIV and to any other special provisions of this Ordinance:

(a) a building or work shall not without the consent of the responsible authority be erected, carried out or used in any zone for any purpose shown opposite that zone in column IV of the Table to CL10:

(b) a building or work shall not be erected, carried out or used in any zone for any purpose shown opposite that zone in column V of the Table to CL10.

Subject to the provisions of PtIV and to any other special provisions of this Ordinance:

(a) land included in a zone whether forming the site of a building or not shall not be used without the consent of the responsible authority for any purpose for which a building in the same zone may be erected or used only with the consent of the responsible authority;

(b) land included in a zone, whether forming the site of a building or not shall not be used for any purpose for which a building in the same zone may not be erected or used.

Notwithstanding the provisions of PtIII and PtVI but subject to the provisions of Part n of this Ordinance, an existing building or an existing work may be maintained and may be used for its existing use and ao existing use of land may be continued notwithstanding that such existing use is for a purpose for which buildings or works may not he erected or used or for which land may not be used under PtIII or PtVI of this Ordinance in respect of the zone in which such existing building or existing work or land is situated....

Nothing in this Ordinance shall prevent the erection of a building or the carrying out of work and the use of such building or work in accordance with the terms of the Town and Country Planning (General Interim Development) Ordinance or of any permission or modification thereof granted under Division 7 of PtXIIA of the Act and under that Ordinance which permission has not been revoked if the erection of the building or the carrying out of the work was commenced but not completed, before the appointed day or is substantially commenced within a period of 12 months after that day.

For the purposes of GPSO, Lot 155 was zoned within a "Non-Urban A" zone. Within such a zone, buildings or works associated with extractive industries could not be erected or carried out or used. "Extractive industry" was defined by CL3 GPSO as meaning "an industry or undertaking, not being a mine, which depend(ed) for its operation on the winning of extractive material from the land upon which it (was) carried on" and "extractive material" was defined as meaning "sand, gravel, clay, turf, soil, rock, stone or similar substances." The effect of these various provisions was that Lot 155 might not be used, nor could any building or work be erected or carried out on Lot 155, nor could any building or work which had been erected or carried out on Lot 155 be used for the purposes of an extractive industry, unless Lot 155 and any building or work thereon had been used for that purpose prior to 24th May 1968 (CL14 GPSO) or unless permission to direct such a building or carry out such a work had been granted pursuant to O.105 and the erection of such a building, or of carrying out of such a work, had been commenced but not completed before, or was substantially commenced within a period of 12 months after, 24th May 1968.

Ihave put the matter in this way since it is, in my view, clear that, not only in LGA, but also in GPSO, a distinction is to be drawn between, on the one hand, "(the) use of... land or (of) a building or work", and, on the other, of "the erection of any building (or)... the carrying out of any work (on the land)", it following that the phrases "the use of a work" and "the carrying out of any work" are not synonymous.

The significance of this, for the purposes of the present Appeal, lies in the fact that, while the decisions of the Court of Appeal! and of the High Court? in Parramatta City Council v Brickworks Ltd make it clear that "a work" is not limited to "'a structure" they equally make it clear that "a work" is, not a process, or an activity, but the physical result of labour done on the land - in that case a brickpit constituted a work.

Bannon J's findings make it clear, in my view, that, at no time prior to 24th May 1969 did any work directed toward opening up a quarry ever commence and still less was any quarry opened; and, second, that at no time prior to 24th May 1968 was the land ever used for the purposes of a quarry.

The result of all this is, in my view, that, while the effect of the provisions of CL51 GPSO was to "extend" any consent or permission existing on "the appointed day", in the sense of allowing a period of 12 months after "the appointed day" for the substantial commencement of any relevant "work" (see, for example, Almora Pty Ltd v North Sydney Municipal Council)3 the interim development approval given in November 1963 ceased to have any relevant operation - that is, ceased to provide protection against the prohibitions contained in CL10, CL11, CL12 GPSO - after 24th May 1969 for two reasons, they being:

there being no use of the land for purposes of a quarry at "the appointed day", the "existing use" provisions (CL14 GPSO) would not, of themselves. Permit use of Lot 155 for the purposes of a quarry; and

unless the work of developing a quarry had, by 24th May 1969, been substantially commenced, the "incomplete development" provisions (CLS1 GPSO) would not have permitted the subsequent opening up of a quarry, and still less the subsequent use of the land for the purposes of a quarry.

If, therefore, the interim development approval given in November 1963 ceased to have any relevant operation after 24th May 1969, there was no consent, or permission, upon which provisions of CL54 of Interim Development O.100, and still less the provisions of CL44 of Interim Development O.122 - Gosford could operate.

Leave to the respondent to file a notice of contention out of time;

Set aside 0.2, O.3 and O.6 of the orders made by the Land and

Stay O.1 of the orders made by the Land and Environment Court on 16 September 1994 for twenty-eight days from the date of this orders with liberty to the appellant to apply to the Land and Environment Court for an extension of the stay;

Otherwise remit the matter to the Land and Environment Court to make

such orders as it deems appropriate in relation to the re-instalment of the

land and stabilising of the quarry face and any suspension for a fixed period of the Court's orders.

Solicitors for the appellant: Tesoriero Henderson Cotter and Welch Counsel for the respondent: WR Davison SC / DR Parry

At a glance

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Judgment (134 paragraphs)

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Cases Cited (11)

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