Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited

Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited - [2015] NSWLEC 49 - NSWLEC 2014 case summary — Zoe

[3]

Current land use controls - Infrastructure SEPP

The parties agree that the site falls within the zone IN1 General Industrial under the Penrith Local Environmental Plan 2010 (the LEP), which is a prescribed zone for the purposes of the Infrastructure SEPP.
Clause 2 of the Infrastructure SEPP provides: 2 Aim of Policy The aim of this Policy is to facilitate the effective delivery of infrastructure across the State by: (a) improving regulatory certainty and efficiency through a consistent planning regime for infrastructure and the provision of services, and (b) providing greater flexibility in the location of infrastructure and service facilities, and (c) allowing for the efficient development, redevelopment or disposal of surplus government owned land, and (d) identifying the environmental assessment category into which different types of infrastructure and services development fall (including identifying certain development of minimal environmental impact as exempt development), and (e) identifying matters to be considered in the assessment of development adjacent to particular types of infrastructure development, and (f) providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing.
Clause 5(1) provides that: A word or expression used in this Policy has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Policy.
The Standard Instrument-Principal Local Environmental Plan (the Standard Instrument) does not define waste.
Clause 120 defines "waste or resource management facility" as follows: waste or resource management facility means a waste or resource transfer station, a resource recovery facility or a waste disposal facility (1) A word or expression used in this Policy has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Policy.
Clause 120 further defines each of the three terms within the definition of "waste or resource management facility" as follows: resource recovery facility means a facility for the recovery of resources from waste, including such works or activities as separating and sorting, processing or treating the waste, composting, temporary storage, transfer or sale of recovered resources, energy generation from waste gases and water treatment, but not including re-manufacture of material or goods or disposal of the material by landfill or incineration. waste disposal facility means a facility for the disposal of waste by landfill, incineration or other means, including associated works or activities such as recycling, resource recovery and other resource management activities, energy generation from waste gases, leachate management, odour control and the winning of extractive material to generate a void for disposal of waste or to cover waste after its disposal. waste or resource transfer station means a facility for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport.
Clause 121 "Development permitted with consent" of the Infrastructure SEPP relevantly provides: (1) Development for the purpose of waste or resource management facilities, other than development referred to in subclause (2), may be carried out by any person with consent on land in a prescribed zone. …
The Prosecutor submitted that the definition of "waste" in Sch 3 "Designated Development" of the Environmental Planning and Assessment Regulation 2000 (NSW) (the EPA Regulation) is of assistance in interpreting the meaning of "waste" in the definition of 'resource recovery facility'. Schedule 3 relevantly states: waste includes any matter or thing whether solid, gaseous or liquid or a combination of any solids, gases or liquids that is discarded or is refuse from processes or uses (such as domestic, medical, industrial, mining, agricultural or commercial processes or uses). A substance is not precluded from being waste for the purposes of this Schedule merely because it can be reprocessed, re-used or recycled or because it is sold or intended for sale.

[4]

Applicable land use controls in 1980

The site has the benefit of a development consent granted on 4 September 1980 (the 1980 consent) (exhibit F, tab 1A) that approved development application No 265/80 dated 17 July 1980 (1980 DA) (exhibit G).
At that time Interim Development Order No 49 - City of Penrith (gazetted on 27 February 1976) (IDO No 49) (exhibit F, tab 4) permitted development of land on the Plan forming Schedule A to IDO No 49. The site formed part of the land the subject of IDO No 49.
Clause 3(a) of IDO No 49 permitted development on the site with consent of the Penrith City Council (the Council) for the purposes set out in Columns III and IV of the Penrith Planning Scheme Ordinance (gazetted on 18 March 1960) (the PSSO) contained in land falling within Zone No 4(a) "General Industrial". The site was within this zone. The PSSO provided at cl 24 (exhibit F, tab 5, p 28): Purposes for which building works may be erected or carried out or used without consent of the responsible authority Purposes for which buildings or works may be erected or carried out or used only with the consent of the responsible authority Purposes for which buildings or works may not be erected or carried out or used Column III Column IV Column V Industries other than offensive or hazardous industries and extractive industries; utility installations Any purpose other than those permitted by Column III or prohibited by Column V Dwelling houses and residential buildings other than those used in conjunction with industry and situated on the land on which such industry is conducted; extractive industries; hospitals; institutions; mines; motels; offensive or hazardous industries; shops and commercial premises other than convenience stores, retail plant nurseries (as defined in clause 4(1) of the Environmental Planning and Assessment Model Provisions 1980) and purposes specified in Schedule 4; stock and sale yards.

[6]

Evidence

The Prosecutor read and relied on the affidavits of Ms Hamann dated 17 February 2014, Ms Soster dated 24 April 2014, Ms Pope dated 12 February 2014, Mr Rose dated 12 February 2014 and Ms Shephard dated 2 December 2014.
Ms Hamann is an acting senior planner at the Department of Planning and Infrastructure (the Department). She has been in this position for approximately five years. Ms Hamann has been involved in the assessment of the 2012 DA. At the time of swearing her affidavit this was still to be determined. Ms Hamann considers that the facility falls within the definitions of "waste or resource management facility" under the LEP and Infrastructure SEPP. Ms Hamann states that the Defendant's proposal is State Significant Development under Pt 4 of the EPA Act as it involves development for the purposes of a recycling facility that would process more than 100,000 tonnes of waste per year.
On 4 June 2013 Ms Hamann visited the facility with Ms Cheong, a planning officer at the Department, where she met Mr Kelly, whom she understood to be the site manager. Ms Cheong took photographs of the facility (annexure F). Mr Kelly gave Ms Hamann a tour of the facility. Ms Hamann observed, among other things, overflowing glass bunkers, muddy ground containing broken glass and a silt fence between the bunkers.
The following documents were annexed to Ms Hamann's affidavit: the zoning map for the Penrith 2010 LEP, State Significant Development Check Sheet, and email correspondence between the Department and the Council attaching the Development Assessment Report and Determination of Development Application for the extension of the hardstand area and associated land filling (DA 12/0539).
Two exhibits were tendered with Ms Hamann's affidavit (exhibits A and B). Exhibit A relevantly contains the LEP, email correspondence concerning the receipt of the 2012 DA and the Concepts Report for Proposed State Significance Development Glass Recovery Service. Exhibit B contains the Environment Impact Statement prepared by the Defendant's consultant, Benbow Environmental (Benbow) and dated May 2013 (Benbow EIS) (tab 1), and Benbow's response to submissions dated August 2013 (tab 2).
Ms Soster is a senior environmental officer at the Council. Ms Soster's role includes taking regulatory actions to rectify non-compliances and unauthorised uses/structures identified during the investigation process. This includes issuing notices and orders under s 121B of the EPA Act.
On 11 July 2013 Ms Soster attended the site with another Council officer, Mr Page, Departmental officers Ms Pope and Mr Camenzuli, and Environmental Protection Authority officer, Mr Rose. They met with the Defendant's representatives, Mr Tenace, Business Development Manager of SKM Recycling, and Mr Winning from Claron Consulting. During this visit, Ms Soster observed large stockpiles of glass material alongside the building, a large amount of glass material scattered throughout the entire factory, a garbage odour inside the factory and aluminium products stored at the site. Adam (surname not provided), the site manager, advised that the aluminium material is just sorted and bundled together and will be taken off the site for recycling (file note, annexure H).
Ms Soster visited the site again on 22 January 2014 with Ms Pope, Mr Camenzuli and another Council officer, Mr Small. They met Mr Ryan, the site manager, and observed operations. Ms Soster observed discharge of sediment and glass material, odour from stockpiled glass bottles and noise emissions from plant operations.
As a result of her site inspections, Ms Soster formed the opinion that the current use of the land on which the facility is located falls within the definition of "waste or resource management facility". Ms Soster searched the Council's records, but did not find any consent or approval for the use of the land as a "waste or resource management facility".
Ms Pope is a senior compliance officer at the Department and has been for the past five years. Ms Pope investigates suspected breaches of the EPA Act and takes appropriate enforcement action in accordance with the Department's Compliance Policy. On the 11 July 2013 site visit Ms Pope took photographs (annexure E) and made a number of observations, including seeing a layer of crushed glass mixed with dirt creating the potential for contaminants to be washed into the stormwater system, spillage of broken glass, raw waste glass inside the warehouse, stockpiles of processed glass and waste material outside the warehouse, truck deliveries, a dust extraction unit, and a rubbish odour inside and outside the warehouse.
During the 22 January 2014 visit, Ms Pope took more photographs (annexure K) and observed further truck deliveries, a strong rubbish odour, a stockpile of glass at the rear of the site that had increased in size since the 11 July 2013 site visit, sediment fencing that was in need of repair and muddy conditions. An exhibit was tendered with Ms Pope's affidavit (exhibit C). Exhibit C contains email correspondence between Ms Pope and Mr Tenace with outbound weighbridge records attached.
Mr Rose is a senior waste operations officer at the NSW Environmental Protection Authority, a position he has had for approximately five years. Mr Rose's duties include undertaking regulatory activities and recommending conditions of consent for the purposes of the EPA Act. During the 11 July 2013 site visit, Mr Rose observed and took photographs of stockpiles of processed glass waste stored to the rear of the facility (annexure A).
Mr Rose was involved in reviewing the Benbow EIS for the purposes of making recommendations to the Department. In a letter to the Department, he identified, among other issues, the risk that flood waters could disperse crushed glass through the flood plain (annexure B). Benbow has modified the EIS to take into account the risk of flooding.
Ms Shephard is a "right to information officer" at the Council. Ms Shephard also worked as a records officer at the Council. Ms Shephard gave evidence on the Council's records of consents and approvals granted to the property on which the facility is located. Annexures A and B to Ms Shephard's affidavit are index cards recording development applications and approvals made in the respect of the property. An exhibit was tendered with Ms Shephard's affidavit (exhibit F). Tab 1 of exhibit F contains the consents and approvals granted in respect of the property. Exhibit F also contains IDO No 49 (tab 4) and the PPSO (tab 5).
The Prosecutor tendered additional exhibits (D, E and G). Exhibit D is the material attached to the s 247E Notice, which is made up of the NSW Cullet Supply Agreement between the Defendant and Owen-Illinois (OI), a subsequent amendment to that agreement, the document titled "NSW Cullet - GRS Timing Plan Review" and OI's invoice transactions from dealings with the Defendant. Under cl 3(a) of the NSW Cullet Supply Agreement the Defendant agreed and undertook to build a beneficiation facility for use in the supply of beneficiated cullet and fine grind cullet to OI. Exhibit E is development consent dated 25 July 2014 for application number SSD 5267. The development consent approved the Defendant's 2012 DA for the fit out of an existing industrial building and operation of a glass recycling facility on the site. Exhibit G is the 1980 DA which identifies the purpose for which consent is required as "proposed factory" (item 2) and the proposed use of the site as "manufacture of aluminium slugs for impact intrusions. Aluminium cans and tubes. Injection - moulded plastics" (item 7).
The Defendant read and relied on the affidavit of Mr Italiano dated 8 December 2014. Mr Italiano is the manager of the Defendant. He has worked in the industry since 1997. He has been involved in the glass beneficiation facility since its inception. Mr Italiano gave evidence that the Defendant receives glass material from three streams.
The first stream is from "Material Recovery Facilities" (MRFs). Local councils pick up kerbside recycling bins and take them to MRFs. MRFs sort the mixed material into streams (i.e. paper, plastic, glass). The MRF sorting process breaks down the glass bottles to a size generally less than 100mm in length. The resulting glass material is delivered to the Defendant and loaded into a storage bunker on the site. The Defendant carries out quality control on all loads that enter the site. The material from MRFs contains generally less than 10% (by weight) of non-glass material. The Defendant paid the MRFs for delivery and/or the glass material, depending on its payment arrangement with the MRF. The major suppliers were Par Recycling, Sita Recycling and Theiss/Remondis.
The second stream is from pubs and clubs. A specialised machine in the pubs and clubs crushes the glass. Bottlecyclers, which has a contract with the pubs and clubs, takes the glass material to the Defendant. The Defendant pays Bottlecyclers on the basis of a report of weighbridge receipts. Glass material received from this stream comprised 98% glass.
The third stream is from small merchant suppliers. Merchant suppliers go to other pubs and clubs and hand sort empty whole bottles by colour. Merchant suppliers deliver the glass bottles to the Defendant, generally in small trucks that have segregated bays for each colour. The trucks tip off a specific colour in a specific bay in the drop off area located in the bunker area. Merchant suppliers have a relationship with OI. Suppliers often contact the Defendant to set up an account as a "merchant supplier" with OI. Mr Italiano understands that the glass collected by the merchant suppliers is always owned by OI. The Defendant pays the merchant suppliers for their deliveries and is reimbursed by OI. The deliveries contain about 98% glass material, with the remaining being metals such as bottle tops and screw caps.
By weight, the Defendant received approximately 65% of glass material from MRFs, 25% from merchant suppliers, and 10% from bars and clubs through Bottlecyclers.
The Defendant beneficiates glass material by separating, cleaning, and colour sorting the glass material. Under a contract with OI, the Defendant supplies OI with beneficiated glass. OI pays the Defendant a processing fee for glass received from merchant suppliers and a fixed amount per tonne for all other beneficiated glass. The Defendant produces between 1,600 and 1,800 tonnes of beneficiated glass per week.
In cross-examination Mr Italiano stated that he thought that the installation of the glass beneficiation facility took place in March/April 2012. Mr Italiano made it clear that his affidavit evidence concerning the sourced material covered the whole of the charge period from August 2012 to January 2014. Mr Italiano was at the site for two to four weeks for the installation. Mr Italiano stated that in the charge period he generally visited the site once every three to six months. His affidavit was based on what he saw during the installation and inspection and on what he understood to be happening. Mr Italiano said that he was unaware of any glass material stored outside the factory during the charge period. Mr Italiano also gave evidence on the calculation of payments for incoming glass. Mr Italiano did not describe the glass material as waste.

[8]

The Council Development Notice No 265/80 relevantly stated: COUNCIL OF THE CITY OF PENRITH DEVELOPMENT NOTICE Local Government Act, 1919, as amended Part XIIA Town and Country Planning Schemes Applicant's name Paynter and Dixon Pty Ltd Address: 161 Clarence Street, Sydney Premises Referred to in Lot 122 D.P.568713 Andrews Road, Penrith Development Application: Date of receipt: 17th July, 1980 Brief Description of Proposed Development: The erection of a generally 70.5m x 102m factory building in accordance with plans numbered A/2A, A/3A, A/4A and A/5A submitted to Council on 17th July 1980. In pursuance of its powers under the abovementioned Act, the Council as the responsible authority resolved at its meeting held on 26 August 1980 (Minute No 76) to grant [consent] subject to the following conditions the abovementioned Development Application. … Conditions attached to granting of application 1. This consent shall be void if the development to which it refers is not substantially commenced within twelve months after the date of the consent; provided that Council may, if good cause be shown in a written application requesting an extension of time, grant an extension of the consent beyond such period. 2. Before usage of the development commences, all of the conditions of this consent are to be complied with to Council's satisfaction, and it is the responsibility of the applicant to advise Council's Town Planning Department when the development is ready for inspection. (This inspection is a separate requirement to the final inspection of the building which is carried out by Council's Health and Building Department). 3. All alterations to services and municipal facilities as necessitated by the development shall be the responsibility of the applicant. 4. Arrangements satisfactory to the City Engineer are to be made for the provision of common drainage and the disposal of drainage from the site. Details are to be submitted for approval prior to the approval of the Building Application. 5. Where the disposal of drainage involves the provision of drains across lands owned by others, drainage easements to Council's standards shall be provided for which documentary evidence will be necessary prior to the approval of the Building Application. 6. Habitable floor levels and basement entry levels shall not be below RL 25.000 A.H.D. (adopted flood level +0.5m). 7. The construction of kerb and gutter and ancillary works in Andrews Road in accordance with Council's standard specifications for roadworks and with plans submitted in triplicate for approval by the City Engineer prior to the approval of the Building Application. 8. The construction of road shoulders in Andrews Road in accordance with Council's standard specifications for roadworks. Widths of shoulders to be from lip of gutter to edge of existing seal. 9. The submission of building plans and specification under cover of a formal building application to the satisfaction of the City Health Surveyor. It is to be noted that the consideration of this application has been limited generally to matters relating to site treatment and that detailed consideration has not been given to the internal layout of the building or matters controlled under the provisions of the relevant building requirements. Applicants are advised that it is in their interests to consult with Council's Health and Building Department with respect to these matters prior to the preparation of working drawings. 10. Submission of a schedule of proposed external finishes including sample material for Council's consideration and approval in conjunction with the submission of a building application. 11. There shall be maintained on the site facilities for parking sufficient to serve the business conducted thereon and no use shall be made of the site which will attract parking in excess of the parking spaces available thereon. 12. All parking spaces are to be permanently delineated to Council's satisfaction and have minimum dimensions 5.5m x 2.6m x 6.7m turning aisle. 13. All land required for vehicular access and parking is to be concreted or sealed with a bituminous pavement to Council's satisfaction. 14. Heavy duty paved vehicular footway crossings are to be provided at all points of ingress and egress to the satisfaction of and under the supervision of the City Engineer. 15. Vehicles must be driven forward onto and away from the site. 16. Satisfactory arrangements are to be made with Prospect County Council for the underground reticulation of low voltage electricity. 17. Satisfactory arrangements are to be made with Prospect County Council and Penrith City Council for the provision of a padmount substation. 18. Separate application is to be made for all advertising material. 19. The subject development, including landscaping, is to be maintained in a clean and tidy manner to Council's satisfaction at all times and any direction given by Council in this regard is to be given immediate compliance. 20. A distance of 18m is to be kept clear around the building to the satisfaction of the City Health Surveyor. 21. The development is to comply with the requirements of the State Pollution Control Commission in respect to emissions of waste water or air borne pollutants. 22. A drainage reserve 55mm wide, adjacent to the Andrews Road frontage of the site, is to be dedicated to Council. All development, other than that necessary for access to the site, is to stand clear of the reserve area. 23. Stormwater drainage disposal from the development shall be piped to the front of the site and connected to the existing waterway as a temporary measure. Permanent connection to Council's satisfaction shall be carried out upon completion of Council's Trunk Drainage System for the area. 24. Temporary access shall be constructed across the Drainage Reserve area with an undertaking provided by the developer for construction of permanent access upon completion of Council's Trunk Drainage System. 25. The applicant shall liaise with Council's Engineering Department regarding the provision of a sewerage connection for the site. 26. Roofing of the factory is to be of dull coloured, non-reflective material. 27. The combined ingress/egress driveway is to be separated by a 1m wide island. 28. A plan of landscaping is to be submitted for Council's consideration and approval concurrently with the Building Application. In this regard it should be noted that the eastern boundary of the site in the vicinity of the factory is to be intensively landscaped with trees elected in consultation with Council's town Planning Department.
Ms Shephard produced the plans numbered A/2A, A/3A, A/4A and A/5A as material that accompanied the 1980 DA. The plans were drawn up by Paynter & Dixon for a "proposed factory". The Prosecutor identified plan A/2A as being the most relevant plan for these proceedings. Plan A/2A identifies some of the rooms as, inter alia, plastic moulding, a machine shop, a crane bay and a casting shop. The large space within the building to the eastern side is unidentified.
In the Minutes of the Ordinary Meeting of the Penrith City Council held in the Council Chambers, Penrith on Tuesday 26 August, 1980 the following resolution was made: RESOLVED on the motion of Ald. Cammack seconded Ald. Saunders that the recommendations contained in the General Purposes Committee Meeting Report as Items GP 1 to GP 91 be adopted.
This resolution included GP61, which is the recommendation in the town planner's report "that the application be approved subject to standard development conditions … and … additional conditions".

[11]

Prosecutor's submissions

The Prosecutor submitted that the glass beneficiation facility operated by the Defendant is a "waste or resource facility", specifically, a "resource recovery facility" as defined in cl 120 of the Infrastructure SEPP. The Benbow EIS states that the glass beneficiation facility fell within this definition (exhibit B, tab 1, pp 2-15, 2-18). These were admissions against the Defendant and satisfied s 87 of the Evidence Act 1995 (NSW) (the Evidence Act). The broken glass delivered to the Defendant at the glass beneficiation facility was still "waste" as it had not finished being processed to recover a "resource" at that point. Therefore, the Defendant's use was within the definition of "resource recovery facility".
The term "waste" is not defined in the Infrastructure SEPP. The use of a dictionary to provide the plain and ordinary definition of the term is not a substitute for the judicial determination of the interpretation and construction of statutes and other documents: Provincial Insurance Australia Pty Limited v Consolidated Wool Products Pty Ltd (1991) 25 NSWLR 541 at 560-561, cited in House of Peace Pty Limited v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498. The Court of Appeal criticised the use of dictionaries in House of Peace at [29].
Rather than carving out the word "waste" from the definition, the definition of "resource recovery facility" should be read as a whole. The whole of the definition involves recovering resources from waste. Inherent in the definition of "resource recovery facility" is that the resource may be recovered from "waste". This is what the Defendant did by accepting broken sorted bottles and glass and further sorting them into a usable end resource.
The Court can take into account the planning framework within which the Infrastructure SEPP sits to draw an appropriate meaning from "waste". The Defendant's position in May 2013 was that Sch 3 to the EPA Regulation applied as the Benbow EIS specifically noted that the proposal was "designated development" pursuant to s 77A of the EPA Act. The use of the glass beneficiation facility would have been classed as "designated development" had it not been declared "state significant development". As such, the definition of "waste" in Sch 3 to the EPA Regulation is instructive, while not being strictly applicable. In the context of the definition of Sch 3 the glass delivered to the Defendant's glass beneficiation facility is "waste" even though the Defendant can reprocess it for use.

[12]

Defendant's submissions

The glass beneficiation facility operated by the Defendant is not a "waste or resource management facility". The Defendant did not receive "waste" at its glass beneficiation facility in the charge period. Therefore, it does not fall within the definition of "waste or resource facility" as it is not a "resource recovery facility".
There is no definition of "waste" in the Infrastructure SEPP or in the EPA Act. There is a definition of "waste" in cl 38 of Sch 3 of the EPA Regulation, but this definition only relates to designated development, and has no broader application. The word "waste" as it appears in the terms defined in cl 120 of the Infrastructure SEPP, including in the definition of "resource recovery facility" bears its ordinary meaning construed in light of the definition as a whole and the instrument itself, in accordance with ordinary canons of construction. In carrying out the task of construction regard may be had to the ordinary meaning of the word "waste".
While not suggesting that the dictionary definition is conclusive of the meaning, waste is generally understood to be something that is unwanted, unused, unproductive or surplus: Macquarie Dictionary (5th ed, 2009) at 1860. There is nothing in the definition of "resource recovery facility" or elsewhere in Pt 3 of the Infrastructure SEPP that indicates a different meaning is intended. Rather, the term "waste" is used in contradistinction to the term "resources", contemplating that waste, or a component of waste, once processed, may be transformed into a resource.
The glass beneficiation facility is not a facility the Prosecutor can establish is a "resource recovery facility". The glass beneficiation facility receives used glass material at a point in time where the material is no longer waste. In other words, the point in the cycle in which glass which was part of empty bottles ceases to be waste is reached before the used glass material comes in through the Defendant's gate. It is the facilities earlier in the process, such as the MRFs that would fit the definition of a "resource recovery facility".
MRFs are resource recovery facilities because MRFs separate plastic, metals, and other material from the bottles, and then process and break them up. Once the glass has gone through processing at a MRF it is in the form of crushed and cleaned glass, although it requires further processing and removal of the impurities at the Defendant's facility.
The Defendant paid for the transport and/or supply of the glass material from a number of MRFs. This circumstance weighs against the proposition that the material was waste at the time the Defendant received it. Rather, it suggests that the Defendant received a resource that had been processed from waste by a MRF. The Defendant falls on the same side of the industrial process as OI. The Defendant and OI are factories that use resources and process the resources to bring them to the point where they become a finished product.
Furthermore the excluding words "but not including re-manufacture of material or goods" in the definition of resource recovery facility prevent the definition from applying to the activities carried out by the Defendant at its glass beneficiation facility.
In oral submissions the Defendant argued that ultimately the case is a question of characterisation of use and in planning law, use must be for a purpose: Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27]. Clause 121(1) of the Infrastructure SEPP identifies development that requires consent by reference to its purpose. The glass beneficiation facility is not for the purpose of a resource recovery facility. If characterisation is necessary, the glass beneficiation facility is for the purpose of general industrial manufacturing.

[14]

Prior admissions (s 87 Evidence Act) not made

The Prosecutor submits that admissions have been made which can be admitted against the interest of the Defendant that its facility is a resource recovery facility. Section 87 of the Evidence Act relevantly provides: (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority …
Admission is defined in the dictionary to the Evidence Act as meaning a previous representation that is "made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and is adverse to a person's interest in the outcome of proceedings". Representation is defined to include "an express or implied representation whether oral or in writing" inter alia. Section 87 in its terms does not limit the nature of an admission, for example, to matters of fact.
The application of s 87 in this case arises in the context that the parties have already tendered the Benbow EIS and it has been admitted into evidence. The argument in relation to s 87 is whether these admitted statements should be treated as representations made on behalf of the Defendant constituting relevant admissions for the purposes of these proceedings. The Prosecutor submitted that in the Benbow EIS the Defendant through its consultant admitted, firstly, that the glass beneficiation facility fell within the definition of "resource recovery facility" as defined in cl 120 of the Infrastructure SEPP (exhibit B, tab 1, p 2-15). Secondly, the proposed use as a "resource recovery facility" is a use permitted with consent under the provision of the infrastructure SEPP (exhibit B, tab 1, p 2-18). The EIS accompanied the 2012 DA signed by Mr Italiano, the sole director of the Defendant.
In oral submissions, the Defendant accepted that if the statements made by Benbow in the EIS are admissions, they would be admissions against it: transcript p 66. However, the statements made by the Defendant's consultant in an EIS are not capable of constituting an admission of fact. Rather statements that the glass beneficiation facility is a "waste or resource recovery facility" are expressions of opinion about the application of a legal definition. An admission of fact is not to be conflated with an opinion about the legal consequences that flow from admitted facts. That submission is supported by High Court authority. In Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317 per Gummow J held at [70]-[71] (Heydon and McHugh JJ agreeing): 70 Different questions arise where, as here, the suggested admission [of negligence] includes a conclusion which depends upon the application of a legal standard. In Grey, Glass JA considered an admission sought from a witness to the effect that he had assigned certain choses in action at law or in equity. His Honour said: "By extorting from a party an admission that he was negligent, or that he was not provoked, or that his grandfather possessed testamentary capacity, there is added to the record something which is, not merely of dubious value, but by definition valueless, owing to the witness' unfamiliarity with the standard governing his answer." 71 That reasoning, which in terms applies to the suggested "admission" by Dovuro, has been applied in cases arising under the [Trade Practices] Act. In Eastern Express Pty Ltd v General Newspapers Pty Ltd, a question arose as to whether certain statements amounted to an express admission of a proscribed purpose for the application of s 46 of the Act. Lockhart and Gummow JJ said on that subject: "As a general proposition, an informal admission as to a matter of fact, by words or conduct which is made by a party or a privy, is admissible evidence against that party of the truth of its contents. The complexity of the construction given in the case law to the ordinary words of s 46 must mean, at the very least, that in this area what is tendered as an express admission is likely to be a statement as to matters of mixed law and fact, rather than simply of fact. In the case of alleged contraventions of s 52 of the Act, admissions by a trader in the course of cross-examination that his conduct was 'misleading' and 'deceptive' cannot be relied upon to usurp the task of the court to judge the legal quality of that conduct. It is unsettled whether admissions may be made of matters of mixed law and fact. In [Grey], Glass JA described various decisions accepting admissions by a party as to questions of mixed law and fact as having been given with no regard to principle. In his view, when a standard, measure or capacity is fixed by law, a party cannot be asked to admit a conclusion depending upon the legal standard; however, the witness may be asked to admit facts from which the conclusion of law may be drawn by the court. In our view, that is how the pieces of evidence in issue here should be considered, the question being whether the statements provide material from which his Honour should have drawn a conclusion as to predatory purpose for the purposes of s 46." The so-called "admissions" of officers of Dovuro as outlined in the passages quoted above provide no basis for a finding of negligence in this case.
These passages in Dovuro were cited with approval in Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 by Basten JA at [80]-[82] (Gleeson JA agreeing).
As already identified s 87 is not in terms explicitly specified as relating to admissions. The commentary in Stephen Odgers, Uniform Evidence Law, (11th ed 2014, Thomson Reuters) at [1.3.4820] in relation to admissions of mixed fact and law cites Dovuro as authority that an admission on a mixture of fact and law cannot determine any legal issue in proceedings and may have little or no weight as an admission of a failure to comply with a legal standard of conduct. That conclusion also applies to admissions on a legal issue alone. I consider that the statements by Benbow in the EIS are not admissions on a material matter of fact in these proceedings, are not admissions relating to mixed fact and law (about which the authorities vary as to admissibility) but relate solely to the application of a statutory term which is a legal issue. In light of Dovuro, these cannot be relied on for the purposes of s 87 of the Evidence Act in these proceedings. Accordingly, for the second element to be made out the Prosecutor must prove beyond reasonable doubt that the definition of "resource recovery facility" applied to the Defendant's glass beneficiation facility in the charge period.

[15]

Application of definition of resource recovery facility

There is no dispute about the facts concerning the Defendant's use of the facility and the processes carried out in the charge period. Although the Prosecutor did not argue the application of the definition of "resource recovery facility" on the basis of characterisation of the purpose of the use the Defendant submitted that was relevant in that the purpose of the use must be determined to see if that meets the definition. The Defendant's view is supported by cl 121 of the Infrastructure SEPP which refers to development permitted with consent including development for the purpose of "waste or resource management facilities". Part of the Court's consideration will include the definition of "resource recovery facility".
A detailed description for converting used glass delivered to the Defendant's facility into cullet is identified in the EIS lodged with the 2012 DA, which was granted consent in July 2014. Stages include sorting, crushing, removal of contaminants and storage of material. The cullet is provided for a fee to OI which company makes glass bottles. A copy of the contract with OI is in exhibit D. The Prosecutor submits that the used glass delivered to the Defendant's facility is still in a recycling, meaning I infer waste recovery, process and therefore waste. Figure 3-12 in the EIS shows the waste streams associated with the production of the cullet at the facility and waste glass is identified as the primary input. The photographs annexed to the affidavits of Ms Pope council officer taken in July 2013 and January 2014 show the nature of the glass material delivered to the facility as broken bottles and pieces of glass. As the Prosecutor submitted the used glass is the raw material used for making cullet, as also shown in Fig 3-13 in the EIS. The appearance of the glass delivered to the Defendant's facility is not conclusive however that it is waste for the purposes of the definition of "resource recovery facility".
The principles of statutory interpretation are well known. The ordinary and common sense meaning of words should be applied to a statute having regard to the context where necessary. The task of statutory construction must begin with a consideration of the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]. In Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269 I stated at [55]: Section 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381-382. Their Honours stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 at 305. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. See also French CJ (in a separate judgment but agreeing with the orders of the joint judgment) at [4]-[5]. In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] Allsop P stated that in construing an Act the legal and historical context must be considered at the outset. At [13] his Honour emphasised the principles in Project Blue Sky.
The principles of statutory construction were discussed relatively recently by the Court of Criminal Appeal in the context of the definition of waste under the Protection of the Environment Operations Act 1997 (NSW) (the PEO Act) in relation to an offence relating to the transportation of waste. I embrace the findings of Basten JA in Shannongrove Pty Ltd v Environmental Protection Authority [2013] NSWCCA 79; (2013) NSWLR 668 at [18]-[19] in relation to s 33 of the Interpretation Act 1987 (NSW) which requires a construction promoting the objects of a statutory instrument to the effect that objects identified at a high level of generality can be of limited assistance in construing a specific provision or word. The general aims in cl 2 of the Infrastructure SEPP set out above in par 11 do not assist in determining the meaning of the detailed definition I must consider.

[16]

Whose waste?

Under the Infrastructure SEPP "resource recovery facility" is defined. Both parties emphasised the need to look at the definition as a whole. It refers to the recovery of resources from waste. The Prosecutor focussed on the phrase "recovery of resources from waste", whereas the Defendant focussed on "waste". On either view a key ingredient is the definition of "waste", for which no definition is provided in the Infrastructure SEPP. Waste is not defined in the Standard Instrument to which the Infrastructure SEPP refers. The Prosecutor submitted that the definition of "waste" in Sch 3 of the EPA Regulation should be applied by analogy. It does not apply expressly as it is not incorporated by the Infrastructure SEPP and there is no statutory construction principle which suggests it applies by implication. That leaves me to consider the ordinary meaning of "waste" in the context of the Infrastructure SEPP. Dictionary definitions can be referred to in the absence of a statutory definition but are not to be regarded as definitive as cautioned in the authorities referred to by the Prosecutor of Provincial Insurance Australia and House of Peace at [25]-[29] adopting 560-561 of Provincial Insurance Australia. Waste means unwanted and unused material, anything left over or superfluous, excess material, by-product inter alia according to the Macquarie Dictionary (5th ed, 2009) at 1860. In this case the dictionary definition provides a good starting point but additional considerations arise as I discuss next.
One key question that arises implicitly from the parties' submissions is how the Court should decide the glass is "waste", namely whose view of whether material is "waste" is relevant. Based on the parties' arguments, whether the glass received by the Defendant is "waste" meaning unwanted or unused or superfluous could be determined by the Defendant's opinion that the glass is a recovered resource and therefore not a "waste", or by the opinion of the Prosecutor's officers that the glass delivered to the Defendant's glass beneficiation facility is "waste" or by the Court drawing its own conclusion based on, in this case, photographs showing used broken glass bottles delivered to the Defendant's glass beneficiation facility. I can rule immediately that the Court's opinion should not be relevant and nor should the Prosecutor or Defendants' opinions. Given that these are criminal proceedings the approach to statutory construction must yield a result that provides some certainty of application of the definition if at all possible and subjective opinions do not assist in that regard.
In Shannongrove the Court of Appeal was considering a company which contracted with the operator of a waste facility to take liquid by-product to a farm as fertiliser. The relevant definition of "waste" in s 143(4) of the PEO Act for the offence of transporting waste to a place that could not be lawfully used as a waste facility included "any unwanted or surplus substance", which is essentially the dictionary definition. The definition contained an additional ingredient that a substance was not precluded from being waste for the purposes of the PEO Act merely because it can be reprocessed, re-used or recycled. The PEO Act also had a definition of "waste" in the Dictionary in broader terms than in s 143(4) which contained, inter alia, "includes (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the substance". At [29] Basten ACJ (Hall J and Barr AJ concurring) stated that viewed in isolation s 143(4) would be understood to refer to substances unwanted by their owner, or surplus to the needs of the owner in the context of the offence of transportation of waste to a place of a specified character. Subsequently for a second charge period the definition of waste in the Dictionary changed and the definition in s 143(4) was repealed. Basten ACJ held that within the definition (b) "unwanted" and "surplus" (not including "discarded", "rejected" and "abandoned") described a characteristic resulting from an activity of the owner which may demonstrate a state of mind consistent with not needing or wanting the substance, at [26] and [29]. Further support for this conclusion was found in an element of the offence being that waste was transported to a place of specified character at [30]. The appellant's argument that the waste was no longer unwanted or surplus once loaded in a tanker was not accepted in part because this would undermine the statutory scheme as a consequence of that argument would be that any substance applied to agricultural land would not be waste, at [36].
In Environmental Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; (2013) 84 NSWLR 679 broadly similar issues arose in relation to the same offence and the construction of the definition of "waste" in s 143(4) and subsequently the amended Dictionary definition of waste in a different factual context, the deposition of building demolition material as road base on a private property. The statutory context required the consideration of whether the owner of material at the time transportation commenced had a continuing use for the material at [25]-[26] referring to Shannongrove. At [27] Basten ACJ (Hall J and Barr AJ concurring) identified that "unwanted" and "surplus" require reference to the state of mind of a person. In the context he was considering of transport of waste that was the owner of the material when transportation was arranged and the building material was waste. The different statutory provisions considered in the two Court of Criminal Appeal cases provide some assistance in the construction task in this matter as they highlight the importance of the particular statutory context for asking whose waste is being considered in a given factual context.
A decision of the New Zealand Court of Appeal Carter Holt Harvey Ltd v North Shore City Council [2008] NZLR 744 is also instructive. At issue were municipal by-laws relating to the collection and transportation of waste requiring those that did so to obtain a licence. Failure to obtain the licence made the collection and transportation of the waste unlawful. The respondent company was a large paper manufacturer using recyclable paper in that process of paper manufacture. It bought recycled paper which was delivered directly from the owner of the paper to the company's recycling operations outside the relevant council districts. The issue was whether the collection of the privately acquired recyclable paper was the collection and transportation of waste. The relevant definition of "waste" was circular in that "paper waste" was defined as paper, cardboard, or any other paper based waste not including specified categories of waste. At [33]-[37] the Court stated: [33] Whether the paper is "waste" for the purposes of the Local Government Acts 1994 and 2002, it became apparent in the course of argument, depends on whether that term is defined as material which is abandoned by its owner (Carter Holt's contention) or whether its meaning extends to any material which is disposed of, provided that it cannot be reused in its existing form for its original or similar purposes (the Councils' position). [34] The various statutory provisions and the competing dictionary provisions to which we were referred do not in our view assist in choosing between these definitions. … [35] We prefer the definition proposed by Carter Holt. The test of whether a former owner has abandoned material does, we think, accord with common usage and common sense. It also provides a clear and practical way of distinguishing between what is "waste" and what is not. [36] In the case of used and unwanted paper, paper which is left at the kerb for collection or delivered to a recycling centre has obviously been abandoned by its former owner and is therefore "waste". The paper which Carter Holt acquires by contract has, equally clearly, not been abandoned and is therefore not "waste". In essence, Carter Holt acquires a secondhand good for consideration rather than collecting "waste". [37] In contrast to Carter Holt's proposed definition, the Councils' definition seems to us to be uncertain, difficult to apply and likely to lead to unintended consequences. For example, glass bottles which were abandoned but which were collected to be reused after washing would not qualify as "waste" because they would be used in their existing form for the same purpose. Difficulties would also arise in determining the point at which the proposed purpose differs from the original or similar purposes.
While the cases I have referred to above address a different statutory context they are useful in identifying that the statutory context is a significant indicator of how the question of whose waste (or not as the case may be) is answered in a particular factual matrix. All the cases referred to above considered the view of the owner of the waste, which was not the primary position of either party before me. The actions of others dealing with the glass in the collection and supply chain leading to the Defendant's facility are potentially relevant. This could include the owners of the pubs and clubs the sources of the used glass bottles and/or the companies/individuals who collect and then supply the used glass to the Defendant's glass beneficiation facility.
According to the affidavit of Mr Italiano summarised above at par 37-42, the glass beneficiation facility receives about 65% of the used glass from material recovery facilities. I infer this is a term recognised generally in the material recycling industry according to his evidence. It is not a statutory term found in the Infrastructure SEPP. At the MRF the glass from the clubs and pubs is sorted and crushed. The Defendant submitted that the MRFs are resource recovery facilities and the Defendant's facility is not a MRF and therefore cannot be a resource recovery facility. That distinction is not based on the statutory scheme that used glass is delivered from a facility called a MRF is not definitive of whether the glass is waste but assists in understanding where the Defendant's facility fits in the glass recycling process.
Used glass is delivered by two other different types of used glass collectors and sorters, Bottlecyclers and small merchant suppliers. Each of the collectors and sorters process the glass bottles to some degree with Bottlecyclers crushing the bottles. That the used glass is first collected and processed to different degrees before it arrives at the Defendant's facility is relevant to considering whether the used glass is "waste" or a "resource" at the facility.
In this matter the consideration of "waste" occurs in the context of the operation of a facility which processes used glass. The statutory context suggests the actions of the operator of the facility are relevant to consider in the overall mix. The Defendant purchases glass or pays for its delivery from the MRF and pays Bottlecyclers for glass delivered. The payment for glass supplied by merchant suppliers is reimbursed by OI. The stream of glass supplied by the small merchant suppliers is owned by OI and is never the Defendant's property. This behaviour suggests the used glass is not a waste as it is not unused or superfluous in the hands of the Defendant. The contract with OI in exhibit D shows there is demand for used, refined glass as a resource for making new glass products.
The reasoning in Carter Holt, while not binding on me, supports this approach to construction. The paper manufacturer in that case was found to be buying secondhand goods not waste. Carter Holt can be considered as the OI equivalent in the relevant paper manufacturing process as it processed the used paper into new paper. In this case there is arguably a further intermediate step in the provision of recycled glass to OI which takes place at the Defendant's facility after the initial waste collection phase of the glass recycling process which is undertaken by the three categories of suppliers to the Defendant. These various factual circumstances suggest that the glass delivered to the Defendant is not waste, including on the assumption that it was waste in the hands of the clubs and pubs where it is generated. These various considerations in relation to the suppliers and the Defendant suggests that the used glass should not be classified as "waste" meaning surplus or abandoned at the Defendant's facility.

[17]

Application of statutory definition

It is also necessary to consider the definition of "resource recovery facility". The Defendant's submissions considered the definition of "resource recovery facility" in detail and correctly in my view. The consideration of the commencing words "facility for the recovery of resources from waste…" in criminal proceedings must be done with sufficient precision to ensure that the definition does not capture a very wide range of facilities, which the Prosecutor's approach arguably does. The meaning of these words is informed by my finding above that the glass material brought to the Defendant's facility is not waste at the facility. If the Defendant's facility is a "resource recovery facility" there is no basis for distinguishing the cullet it produces from used glass as being "waste" when it is sent to OI to make into glass bottles, suggesting OI's facility is also potentially a "resource recovery facility". Such an approach is too broad a construction of the definition.
The definition includes a list of non-exhaustive works or activities which are intended to reflect use as a facility for the recovery of resources from waste. "Separating and sorting, processing or treating" the glass does occur at the Defendant's glass beneficiation facility but that does not mean the glass is waste for the reasons already stated above. Such processes are also carried out to varying degrees by the Defendant's suppliers. Once the glass leaves the MRF the material has undergone the transformation from waste to resource. That finding also applies to the other suppliers of used glass.
The examples of composting and temporary storage in the definition do not apply to the Defendant's facility. Transfer or sale of recovered resources (meaning resources recovered from waste) does not reflect the Defendant's activity on the site. Energy generation from waste gases and water treatment are not relevant.
The re-manufacture of material or goods is excluded under the definition. The Defendant beneficiates glass delivered from three sources by separating, sorting and cleaning the glass, all of which is reconfigured as cullet and supplied to OI. The meaning of "beneficiate" according to the Macquarie Dictionary on-line is to dress or process (ores) as by reducing the size of pieces or removing unwanted constituents the overall quality is improved. According to the EIS purpose-built machinery is used.
Manufacture is defined in the Macquarie Dictionary (5th ed, 2009) at 1020 as, inter alia: … 6. To work up (material) into form for use …
As the Defendant submitted, "manufacture", according to its ordinary meaning, contemplates the making of goods or things by the use of manual labour or machinery or to work up material into a form for use. The activities carried out at the Defendant's facility fall within the ordinary notion of manufacture, as the beneficiation process involves the working up of raw glass into the form of cullet for use. The Defendant's activities are industrial manufacturing processes. They are "re-manufacturing" processes, because the used glass which is used as the resource material by the Defendant in the beneficiation process has previously been manufactured. The glass material is being "re-manufactured" by means of beneficiation at the Defendant's glass beneficiation facility. OI is not the only manufacturer in the process of making glass bottles.
The Defendant submitted that the Prosecutor has not excluded the reasonable hypothesis that the processing carried out at the Defendant's glass beneficiation facility in the charge period involved the "re-manufacture of material", namely the re-manufacture of glass and is thus excluded from the definition of "resource recovery facility". The Defendant's site was arguably being used for the purpose of an industrial facility for the processing and refinement of used glass material during the charge period. That description of purpose is reinforced by the Defendant's submissions on re-manufacture of material, which I accepted in the paragraph above. The definition of "resource recovery facility" does not apply to the Defendant's glass beneficiation facility.
For these reasons I do not consider that the Prosecutor has established the second element of the charge.

[19]

Prosecutor's submissions

The Prosecutor submitted that no development consent was obtained or in force for the specified development carried out by the Defendant in the charge period. The 1980 consent relied on by the Defendant should be construed "fairly and liberally in context according to its written terms": House of Peace at [37]. When construed in this way, the 1980 consent, whether considered in light of the development application or on its own, would not cover the use of the site for a glass beneficiation facility.
The Council approved the 1980 DA by resolution made at the meeting of 26 August 1980 concerning a number of recommendations contained in the General Purposes Committee Meeting Report, including the approval of the 1980 DA subject to standard and additional conditions (exhibit F, tab 1A). The relevant decision is not the notice of determination issued by the Council on 4 September 1980, which purported to reflect the Council's decision of 26 August 1980 and briefly describes the erection of a factory building: Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 77 NSWLR 287 at [47].
The Prosecutor submitted that a summary of authorities in Quarry Products (Newcastle) Pty Limited and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57 at [51]-[89] supports the proposition that the 1980 consent should be construed with reference to the use for the purpose set out in the 1980 DA (that is, "Manufacture of aluminium slugs for impact intrusions. Aluminium cans & tubes. Injection - moulded plastics"). The 1980 consent (and the plans expressly referred to in the 1980 consent) is only adequately described when the 1980 DA is read. Plan A/2A (exhibit F, tab 1) and the large factory space identified with no label on the plan makes this clear. If only the plans are referred to, it is clear from the descriptions in the resolution and notice of determination that the 1980 consent intended to approve a specific type of manufacturing/industry use that did not extend to glass beneficiation.
The use of the site for the purpose of a glass beneficiation facility is not authorised as a use that is "really and substantially a use for a designated purpose": Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535. While changes in methods and designs to the factory approved by the 1980 consent would be immaterial, a use of the site for manufacturing anything other than aluminium and plastic components (and ancillary uses) would not be, in a substantial and relevant sense, a use for a different purpose and not authorised.
If the Defendant's construction is accepted there is a further reason why the 1980 DA could not encompass the glass beneficiation facility. Further if the 1980 consent is construed in the context of the limits of the Council's power to approve a development, the glass beneficiation facility would not have been approved: Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45; (2002) 122 LGERA 347 at [57]. Clause 3 of IDO No 49 permitted development to be carried out on the site with consent for the purposes set out in columns III and IV of the PSSO but not for column V, which included "offensive or hazardous industries".
The Prosecutor relied on the Benbow EIS and Benbow's response to submissions, amongst other things, to submit that the Defendant's use of the site would have fallen within the definition of "offensive or hazardous industry" in the PPSO in 1980. The site would have required isolation from other buildings by reason of the process involved, the method of manufacture, and the nature of the materials used or produced. Fatsel Pty Limited v ACR Trading Pty Limited [No 3] (1987) 64 LGRA 177 demonstrated that there can be an "offensive or hazardous industry" that does not emit unpleasant or offensive odours, and that it is the industry, not the activities that must be classified.

[21]

Third element of offence not proved beyond reasonable doubt

The Defendant submitted that the 1980 consent was for a factory building and use and this extends to the current use as a glass beneficiation facility. If correct the Prosecutor cannot establish the third element of the offence. The well-known principles of the construction of development consents were relatively recently restated in the Court of Appeal in Allandale by Meagher JA at [42]-[48] and Ward JA at [155]-[163] to the effect that documents beyond the consent can be incorporated expressly or by necessary implication where there is ambiguity. In the particular circumstances of that case, Ward JA held that mere reference to the development application in a letter of consent that stated "Further to the above application…" was not express incorporation of the application into the development consent at [180]. The finding of the first instance judge that the development application was impliedly incorporated due to ambiguity in the consent in light of the conditions imposed was upheld. The reference to "… the abovementioned Development Application" in the 1980 consent does not expressly incorporate the 1980 DA. Rather, as Ward JA found in in Allandale, the reference does no more than identify the particular development application to which the 1980 consent responds.
The development consent set out above in par 45 describes the proposed development as the erection of a factory building of a specified size in accordance with specified plans submitted to the Council. The plans are expressly incorporated into the consent. The plans consist of A/2A, A/3A, A/4A and A/5A. The largest floor area within the proposed factory building in the plan A/2A is unidentified. The consent was conditional and the numerous conditions are also set out above at par 45. No ambiguity has been identified by the Prosecutor in relation to these. The only alleged ambiguity identified by the Prosecutor is the absence of a description in the notice of consent or on plan A/2A of the type of factory use for which consent is being given. As the Defendant submitted the absence of a specified use of the factory building is not ambiguous. The Council had power to grant consent to an undefined factory use and did so on the face of the consent. There is no ambiguity on the face of the consent or in the conditions or in the plans which require recourse to other explanatory documents to understand the broad use of the factory building. That the building is able to be used for an unspecified factory use is not ambiguous.
I accept the Defendant's submissions in relation to the evidence. The 1980 consent, construed as a whole, not only authorises the erection of the building, but also its use. The physical form of the building was clear from its dimensions in the 1980 consent and attached plans. The term "factory" in the notice of determination did not add to the understanding of the physical form shown in the plans, but added the dimension of use. The Council consented to a construction of a building outlined in the plans and to the use of the building as a factory. The conditions of the 1980 consent may be considered to ascertain the scope of use the Council intended to approve. Several conditions support the proposition that the 1980 consent also authorises the present use of the building: MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125 at [92]-[103].
The plans (exhibit F, tab 1) include a description in terms of "proposed factory" and illustrate some proposed internal uses, although not for the largest area. The Council was not concerned with the internal details of use, the description as a factory was sufficient. This proposition is supported by conditions 9 and 11 of the 1980 consent that note that detailed consideration has not been given to the layout of the building and contemplates future changes in the precise nature of the use, respectively. The reference to the plans in the notice of determination was to provide specificity to the form of the building only and while some proposed uses for some of the spaces were shown on the plans, that does not require the use of those spaces in that manner.
Pselletes, relied on by the Prosecutor, is distinguishable. Pselletes concerned the construction of a consent where the resolution to grant development consent subject to conditions conflicted with the notice of determination of consent issued by the consent authority. No such conflict exists in this case.
The Prosecutor submitted that the glass beneficiation facility if applied for in 1980 could not have been approved because it would have been offensive and hazardous as defined under the PPSO, being industry which requires isolation from other buildings inter alia. The Prosecutor asks the Court to make findings of fact and draw a conclusion that the facility is offensive and hazardous for the purpose of the PPSO but the evidence relied on is not directed to that question in relation to the instrument as it would have applied in 1980. The Court knows nothing about the circumstances which then existed at or around the site. The observations about the state of the site as seen in inspections by the Defendant's officers in June 2013 when overflowing glass bunkers were observed, 11 July 2013 when glass material scattered throughout the factory was observed, 22 January 2014 when sediment and glass material discharge and inadequate sediment fencing was observed are not probative of whether in 1980 this activity would have met the definition of offensive and hazardous. The Prosecutor bears the criminal onus of establishing that matter and that onus cannot be discharged by asking the Court to conclude in the absence of evidence that the activity would have been offensive and hazardous as defined in the PPSO in 1980.
I do not consider the Prosecutor has established the third element of the offence. The Prosecutor has not proved the offence charged.

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (32)

Cited By (8)