Hopkins and Anor v Tweed Shire Council and Anor

FIRST RESPONDENT: Mr J J Webster (Barrister) SOLICITORS: LEGAL REPRESENTATIVES: Stacks The Law Firm with Halliday and Stainlay

THIRD RESPONDENT: Mr J A Ayling (Barrister) SOLICITORS: Hickey Lawyers

IN THE LAND AND Matter No. 40171 of 2000 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 20 April, 2001

Sandra Hopkins First Applicant The Palms Tweed Heads Pty Limited Second Applicant v Tweed Shire Council First Respondent Summit Properties (Australia) Pty Ltd Third Respondent

On 15 July 1999 Summit Properties lodged development application No K99/957 with the first respondent (Tweed Shire Council). The development application related to the use of land being Lots 9 and 10 DP 822830 and Lot 1 DP 823640 Kirkwood Road and Fraser Drive, South Tweed Heads. The development application referred the council to the accompanying environmental impact statement (EIS) for a description of the proposed development. The EIS was entitled "Proposed Earthworks Kirkwood Road Extension".

The first respondent is the consent authority. The second respondent named in the class 4 application lodged the development application. At the commencement of the hearing leave was granted to amend the class 4 application by deleting any reference to the second respondent (Summit Properties Pty Ltd). Leave was also granted to correct the name of the second applicant by amending the class 4 application to refer to the correct company. The third respondent, Summit Properties (Australia) Pty Ltd, is the owner of the site.

The proposed works (as described in the EIS) involve the staged extraction of approximately 540,000 cubic metres of material from the subject land over a maximum period of four years. The proposed development affects an area of 5 hectares and will form the future road profile of Kirkwood Road. The council plans to upgrade Kirkwood Road and claims that the proposed development will ultimately save the council costs during road construction.

In these class 4 proceedings the applicants seek declarations that the development described in the development application is development for the purposes of an extractive industry, that such development (for the purposes of an extractive industry) is prohibited upon the land having regard to the provisions of Tweed Local Environmental Plan 2000 ("the LEP") and the zoning and the land thereunder; and further, that the development consent granted by the first respondent to development application K99/957 is void and of no effect.

The land owned by the third respondent is zoned 2(e) Residential Tourist and 6(b) Recreation. The development described in the EIS will take place within the 6(b) Recreation zone. Extractive industries are expressly prohibited in the 2(e) zone and are prohibited as an innominate use in the 6(b) zone. Earthworks are expressly permissible with consent in the 6(b) zone and are an innominate permissible use with consent in the 2(e) zone. The respondents contend that the development is permissible with consent as earthworks.

The definition of earthworks in Sch 1 to the LEP refers to:- the addition or removal of any solid material on, to or from land, or any other work which will substantially alter the existing ground level or character of the surface of land.

Schedule 1 defines extractive industry to mean:- (a) the winning of extractive material, or

(b) an undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land on which it is carried on,

but does not include earthworks or works for drainage and landfill or maintenance dredging.

Further, extractive material is "sand, silt, gravel, clay, turf, soil, rock, stone or similar substances".

Schedule 3 of the Environmental Planning and Assessment Regulation 1994 ("the EP&A Regulation") lists those categories of development which are designated development. Schedule 3 includes "Extractive industries" . Section 78A(8)(a) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") requires any development application for a use of land that appears in Sch 3 to be accompanied by an EIS.

Counsel for both respondents conceded at the hearing that the proposed use of the subject land is designated development as the development is within the description of "Extractive industries" in Sch 3.

On 2 August 2000 the council resolved that the development application be approved as follows:-

RESOLVED that Development Application K99/957 for an extractive industry at Lots 9 and 10 DP 822830 and Part Lot 1 DP 823460 Kirkwood Road, Tweed Heads South be approved subject to the following conditions …

A letter of notification dated 11 August 2000 described the proposed development as "earthworks" .

Mr Tomasetti, on behalf of the applicants, submits that the council resolution to grant development consent to a prohibited use was unlawful as it was in contravention of the EP&A Act and that accordingly, the resolution must be declared to be unlawful and invalid and be set aside.

In response to the applicants' submission, Mr Webster, on behalf of the first respondent, argues that the difference between the minutes showing the council's resolution to grant consent to an "extractive industry" and the notification indicating the grant of consent was for "earthworks" did not render the making of the consent invalid.

Mr Webster asks the Court to find that the consent is the notice itself and thus, any attack on the council's resolution can only be based upon a full study of all the council minutes and documents. The first respondent further relies on the notice of consent as the document upon which the third respondent can rely for consent as it is upon that document, according to the first respondent, all legal rights attach.

Counsel for the third respondent, Mr Ayling, argues that the form of the words used in the minutes for recording the council's resolution does not constitute the council's decision. He submits that the minutes were merely evidentiary of the council's decision and it is thus a question of fact what the council decided. Mr Ayling asks the Court to solve what he refers to as an "ambiguity" in the council resolution by reference to extrinsic material including all material before the council when it made its determination.

Mr Ayling submits that the notice is the best evidence of what the decision was and for the purposes of the formality of the post-approval process under the EP&A Act the notice is the embodiment of the decision, if not the decision itself. He argues that once communicated, the decision, in the form in which it is communicated, stands.

The third respondent refers to s 32(1) of the Interpretation Act 1987 to demonstrate that the Act gives force to an instrument to the extent to which it is not in excess of power. In the context of this case, therefore, the third respondent claims that the notice, as an instrument, must be effective to approve earthworks as approval of earthworks is within power, whereas approval of an extractive industry is beyond power. Section 32 does not make an instrument which is void and of no effect a valid exercise of power.

The applicants assert that the words used in the resolution record the council's decision and the proposition that the minutes of the resolution do not constitute the council's decision cannot be supported. Furthermore, any argument claiming ambiguity in the council's decision must be rejected.

Both respondents submit that a proper review of the council files demonstrates that the council had formed a view that was open to it, namely, that the development was permissible as earthworks. Although not now critical to the Court's decision in this case this is not necessarily the test to be applied following the decision of the High Court in Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135 and also the observations of Bignold J in Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55.

Section 81(1) of the EP&A Act is in the following terms:- (1) The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, and

(b) in the case of a development application for consent to carry out designated development, each person who made a submission under section 79 (5), and

(c) such other persons as are required by the regulations to be notified of the determination of the development application.

The notification of the council's determination under s 81(1)(b) of the EP&A Act included the following:- DA No. K99/957 Applicant Name: Sum mit Properties Property Description: Lot 9 and 10 DP 822830 Kirkwood Road, Tweed Heads South Proposed Development: Earthworks

Section 83(1)(b)(ii) of the EP&A Act provides that the date from which a consent operates in the case of a designated development to which an objection has been made in accordance with s 79(5) is upon the expiration of 28 days from the date that is endorsed on the notice of the determination of the development application given in accordance with s 81(1).

The provisions of the EP&A Act in relation to notification, therefore, demonstrate that a development consent is not effective until a notice of determination is given in accordance with the Act ( Townsend & Anor v Evans Shire Council & Ors [2000] NSWLEC 163).

In this case there has been a determination by the council to grant consent to an "extractive industry" . The council then carried out the process of notification as required under s 81. Each notice under s 81 refers to the council's determination to grant consent to "earthworks" .

The Court agrees with the applicants that the council's decision was the resolution represented in written form as the minute. Thus, council purported to grant consent to an "extractive industry" , a form of development prohibited within the zone under the LEP. It is illogical to attempt to rationalise the decision of the council as an intention to grant consent to earthworks when it specifically did otherwise in terms.

The notice, as a notification of the council's determination, is not in accordance with s 81 of the EP&A Act. It does not reflect the determination of the council. As the consent only operates and becomes effective from, in this case, 28 days after the date endorsed on the notification which is to be in accordance with s 81, in the opinion of the Court, no effective consent is in operation as there has been a failure to comply with the provisions of the EP&A Act. There is no date from which the consent can be said to operate.

The development application for the proposed development was accompanied by an EIS. As outlined above, the respondents concede that the proposed development falls within the declaration of "Extractive industries" under Sch 3 of the EP&A Regulation, thus requiring compliance with s 78A of the EP&A Act.

The categorisation or characterisation of development is not determined by reference to the type of development nominated by an applicant in an application for development consent. Nor can it be determined by reference to a condition which requires it to be modified in order to meet the requirements of a definition ( Drummoyne Municipal Council v Maritime Services Board & Ors (1991) 72 LGRA 186 and Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451).

It is appropriate, therefore, to consider the real nature of the activity described in the EIS to determine whether the development described in the development application was permissible development.

A convenient summary of the proposed so called earthworks is taken from the Executive Summary to the EIS as follows:- Summit Properties has commissioned Outline Planning Consultants Pty Ltd to prepare an Environmental Impact Statement (E.I.S.) in support of the staged extraction of approximately 540,000 cubic metres of material from the land over a maximum 4 year period. The excavation is to form the future road profile of Kirkwood Road. The proposed development cuts into the saddle between two small hills. Hours of operation are to be restricted to the day period (7am to 5pm) Mondays to Fridays. This E.I.S. assesses the potential environmental impacts of the proposed earthworks operations. The road construction site is along the northern ridge and would consist of scraping away of surface soils and quarrying.

The excavation will be a multi staged operation. Initially, the working area will be stripped and a mound constructed on the northern side of the proposed cutting. The 2 metre high mound will be immediately revegetated. It will serve a number of purposes including a visual and acoustic buffer to the operations. Machinery will then excavate material below the ridgeline forming batters and the road profile. As each phase of the operations is completed the worked areas will be rehabilitated and landscaped. All extracted material would be loaded onto trucks and transported offsite.

Some of the excavated material will be used on adjacent land as fill. Any material not so used will be sold locally. Throughout the EIS there is an emphasis on the formation of the future road profile of Kirkwood Road.

The objectives of the proposed development are stated, in the EIS, to be:- To provide material to be used as fill on that part of Lot 9 DP 822830 zoned for residential purposes.

To provide a cut in the hill in a position to conform with Tweed Council's plans for the future Kirkwood Road extension.

To enable production of a good quality fill material from a significant extractive resource.

To carry out earthworks and quarrying operations that are designed to comply with all relevant environmental safeguards and guidelines.

To ensure that the proposed operations will be undertaken in a manner which will have no significant adverse effects on the local amenity of the area or the local environment.

To rehabilitate the extraction area on a progressive basis.

The evidence taken from the EIS leaves the Court in no doubt that the development is properly characterised as designated development.

The Court is concerned that a construction that relies upon the unqualified exclusion of earthworks, as defined, from the definition of extractive industry in the LEP would be to take out almost any types of development which involve removal of solid material or any work which will substantially alter the existing ground level. It is difficult to perceive an activity of winning of extractive material that does not also involve the removal of solid material from land. The task of construction is not made easier after having regard to the definition of extractive material and the exclusion of mining from the definition of extractive industry. Conversely, an earthwork that merely has the effect of shaping the contour of land by substantially altering the existing ground level may not always be an extractive industry. It is a question of fact and degree in each case. On the other hand, the draftsperson has included separate definitions for "earthworks" and "works for drainage and landfill" , thereby raising the prospect that it was intended for the terms to be used independently.

Setting the question of construction aside, the issues raised must be determined by answering the question whether it is correct to consider the development as being in respect of "earthworks" as defined.

After a detailed examination of the EIS there can be only one conclusion. That is, the development is not for the purpose of earthworks. The material is to be placed on adjoining and other non contiguous land with the ultimate result that the area excavated and reformed can be conveniently used for the purpose of a future road.

The activity goes well beyond the scope of altering the existing ground level or character of the surface of the land even given the reference in Sch 1 of the LEP to "substantially alter" in the definition of earthworks. Apart from the formation of the future profile of the road, a significant primary purpose of the proposal is the winning of material to be used elsewhere. It goes well beyond the defined permissible use of the removal of solid material or any other work which merely has the affect of altering the existing ground level or character of the surface of the land ( Penrith City Council v Waste Management Authority and Anor (1990) 71 LGRA 376).

The Court is satisfied that the development described in the EIS is not relevantly earthworks for the purpose of the LEP.

The Court agrees with the applicant that if the proposed use is characterised as an extractive industry then it cannot be characterised differently as earthworks because extractive industry under the LEP does not include earthworks. Moreover, even if it fits more than one category, one of which is prohibited, then the consent authority cannot grant development consent ( CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 271). However, to approach the question in that way constitutes an error when one of the uses is relevantly innominate ( Lonergan v Byron Shire Council [2000] NSWLEC 21).

If the conclusion so reached is not open, nevertheless, the task of construing the LEP and its provisions ought to be approached by adopting a construction of the definitions which leads to a reasonably practical result. This would lead to an interpretation that either limits earthworks not included in the definition of extractive industry to those associated with works for drainage and landfill or alternatively, works primarily intended for the purpose of altering the existing ground level or character of the surface of the land. The proposed development does not fit either of these limited categories.

Both respondents submit that if the applicants are otherwise entitled to relief then nevertheless the Court should exercise its discretion not to make any orders. Firstly, there would be no principle of public law being breached. Secondly, the respondents refer to the clear intention of the council to approve the proposal as earthworks as evidenced by the council documents.

The applicants submit that the Court should grant the relief sought for the following reasons:- (a) It is not a technical breach; (b) Compliance with the EP&A Act is a public duty imposed by an Act of Parliament concerned with the orderly development and use of the environment; (c) The expectation that normally those concerned with development will comply with the law; (d) The need and importance of upholding the planning laws of the state outweighing other considerations; (e) The interests of the public when dealing with designated development; and (f) The development approved is prohibited in the council's own planning instrument.

The Court agrees with the applicants that the relief sought should be granted. A council decision which purports to grant consent to a prohibited development is not a technical breach of a planning law. Such an unlawful exercise of power cannot be consistent with the orderly development and use of the environment.

The applicants have attacked the validity of the development application and development consent. The relief the applicants seek in the application includes a declaration that the development application is development for the purposes of an extractive industry as defined in the LEP. The Court has found the development application was made in respect of development that does not fall within a category of development that is permissible development and is therefore prohibited development. Moreover, the notification of the determination of the development application does not accord with the council's resolution and therefore is of no effect. Even if the notification of the determination of the application had properly reflected the council decision it would have notified a consent to prohibited development.

In accordance with the above reasons the Court makes the following orders:- 1. A declaration that the development described in development application K99/957 and the Environmental Impact Statement in support thereof in respect of Lots 9 and 10 DP 822830 and part Lot 1 DP 823640 Kirkwood Road and Fraser Drive, Tweed Heads South is not development for a permissible purpose, namely, earthworks.

2. A declaration that the resolution of Tweed Shire Council to grant development consent to development application K99/957 on 2 August 2000 is void and of no effect.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.