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[2001] NSWCA 216
Court of Appeal (NSW)
2001-08-14
Meagher JA, Powell JA, Beazley JA, Cowdroy J
Original judgment source is linked above.
CITATION : HUNT v. BLACKTOWN CITY COUNCIL [2001] NSWCA 216 FILE NUMBER(S) : CA 40957/99 HEARING DATE(S) : 13/04/01 JUDGMENT DATE : 14 August 2001
PARTIES : Lindsay Hunt (Appellant) Blacktown City Council (Respondent) JUDGMENT OF : Meagher JA at 1; Powell JA at 2; Beazley JA at 52
LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT L & EC 10427/99 FILE NUMBER(S) : LOWER COURT Cowdroy J JUDICIAL OFFICER :
COUNSEL : W.R. Davison SC (Appellant) J.A. Ayling (Respondent) SOLICITORS : Pike Pike & Fenwick (Appellant) Taylor Kelso (Respondent) CATCHWORDS : TOWN PLANNING - Land used for purposes of a poultry farm - Land situated with Residential 2(a) and Special Uses zones under LEP - Whether use as poultry farm an existing use for purposes of LEP - Application for development approval for shopping centre complex - Shops as prohibited purpose in Residential 2(a) and Special Uses 5(a) zones - Whether change of use permitted pursuant to s.108 of EP & A Act D DECISION : Appeal dismissed.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40957/99 L & EC 10427/99 MEAGHER JA POWELL JA BEAZLEY JA 14 August 2001
JUDGMENT 1 MEAGHER JA: I agree with Powell JA. 2 POWELL JA: This is an appeal from a Judgment delivered by Cowdroy J in the Land and Environment Court on 12 November 1999, in which Judgment his Honour recorded his findings on certain preliminary issues which had been argued before him in relation to an appeal by the present Appellant against the refusal by the present Respondent of a Development Application which had earlier been lodged by the Appellant in respect of certain land at Lot 82, Lalor Road, Quakers Hill. Although the Judgment delivered by Cowdroy J was clearly in the nature of an interlocutory decision - the final order dismissing the Appellant's appeal to the Land and Environment Court not being made until 5 March 2000 - s.57(1) of the Land and Environment Court Act 1979 ("the Court Act") permits a party to proceedings in Class 1 of the Land and Environment Court's jurisdiction - as the Appellant's appeal was - to appeal to this Court against an interlocutory decision on a question of law. 3 Although the materials which are before the Court do not contain a copy of the Application for Development approval - DA 97-6724 - which had been lodged by the Appellant with the Respondent, such materials as are before the Court make it tolerably plain that what the Appellant sought was approval to change the use of the land from that of - to use a comparatively neutral phrase - a poultry farm to that of a shopping centre complex. Since the land was situate in part within a Residential 2(a) zone and in part in a Special Uses 5(a) zone under the Blacktown Local Environmental Plan 1988 ("BLEP 1988") in the former of which zones shops were a prohibited purpose and in the latter of which zones any purpose other than that indicated by black lettering on the scheme map - which in this case was drainage - and purposes normally associated with and ancillary to that particular purpose was a prohibited purpose, the approval sought for the change of use could not be granted unless the application were brought within the provisions of ss. 106, 108 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") and Regulations 39(1)(d), 43 of the Environmental Planning and Assessment Regulation 1994 ("the EP & A Regulation") (now Regulations 41(1)(d) and 43 of the Environmental Planning and Assessment Regulation 2000). 4 It is convenient, here, to record the terms of those sections of the EP & A Act and of those Regulations in the EP & A Regulation. They are as follows:
(a) The EP & A Act "106 Definition of 'existing use' In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting that use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. ……… 108 Regulations respecting existing use (1) The regulations may make provision for or with respect to an existing use and, in particular, for or with respect to: ……… (b) the change of an existing use to another use, and ……… (2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. ………"
(b) EP & A Regulation: "38. Object of Part The object of this Part is to regulate existing uses under s.108(1) of the Act. 39. Certain development allowed (1) An existing use may, in accordance with this Division, be: ……… (d) changed to another use including a use that would otherwise be prohibited under the Act. (2) A use to which an existing use is changed is itself taken to be an existing use for the purposes of the Act and may, subject to this Division, be changed to another use. ……… 43. Development consent required for changes of existing uses. Development consent is required: (a) for any change of an existing use to another use ………" 5 In order that one might more readily understand the background to the application made by the Appellant to the Respondent and the bases upon which the Appellant sought to support his application to the Respondent and, later, his appeal to the Land and Environment Court, it is necessary that one give a more extended history of the use of the land and the variations which, over the years, have taken place in the relevant town planning provisions. 6 The lands which were formerly part of two lots - Lots 60 and 61 - in Deposited Plan Registered No. 8050 now comprise five lots - Lots 160, 161, 162, 163, 166 - in Deposited Plan Registered No. 829032. Lot 162 on that Deposited Plan is the land zoned Special Uses 5(a) and, following service by the Respondent of notices to resume that land for the purposes of drainage was transferred to the Respondent in about 1994. Although it is not entirely clear that this was so, the plan (Blue AB 63) which forms part of the Statement of Evidence prepared by the Appellant for the purposes of the hearing of the preliminary issues would appear to indicate that Lot 166 on that Deposited Plan is land which was either resumed by, or transferred to, the Respondent for the purpose of widening Lalor Road. Despite its having acquired Lot 162, the Respondent had not at the time of trial constructed the intended drainage channel and Lot 162 continues to be used to provide vehicular access from Lalor Road to Lots 160 and 161. Upon the drainage channel being constructed, the Respondent is to build a bridge across it and to grant an easement for access through Lot 162 to Lot 161. 7 The original town planning restrictions to which Lots 60 and 61 were subjected were imposed by the County of Cumberland Planning Scheme which was introduced pursuant to the provisions of the Local Government (Amendment) Act 1951, the lots being zoned within a rural area. Within such an area there were no purposes for which buildings might be erected or used without the consent of the responsible authority but it was open to the responsible authority to consent to the erection or use of buildings required in connection with (inter alia) agriculture or rural industries. For this purpose "agriculture" was defined - by reference to the meaning ascribed to it in s.514A of the Local Government Act 1919 - as being: "'Agriculture' and 'cultivation' include horticulture and the use of land for any purpose of husbandry, including the keeping or breeding of livestock, poultry, or bees, and the growing of fruit, vegetables and the like, and 'agricultural' and 'cultivate' have a corresponding meaning."
while "rural industry" was defined as meaning: "… any industry, handling, treating, processing or packing primary products grown, reared or produced in the locality, and a workshop servicing plant or equipment used for rural purposes in the locality."
8 In 1956, at which time, as best as one can judge it from the materials which are before the Court, there was an existing residence on it but it was otherwise unimproved, Guy Gely and his wife purchased Lot 60 in Deposited Plan Registered No. 8050 and moved to take up residence on the land. In April 1957 Mr. and Mrs. Gely commenced construction of a brooder house immediately to the South of the residence and, on the completion of construction, commenced to carry on in partnership a business of producing fertilised breeding poultry eggs for sale to chicken hatcheries. In the following five years or thereabouts a number of additional buildings - including a feed mill and packing shed constructed in 1961 - were erected on Lot 60. The Respondent appears (Blue AB 288) to have no record of any consent granted for the erection of any of the buildings erected between 1957 and 1965. 9 In 1963, Mr. and Mrs. Gely purchased Lot 61 in Deposited Plan Registered No. 8050. After the acquisition of Lot 61, further buildings were erected on Lot 60 and two buildings were erected on Lot 61. In addition, a dam and a water hole were constructed in the North Western corner of Lot 61. The Respondent's records disclose two consents (Blue AB 273-274) granted in July 1966, one (Blue AB 273) for the erection on Lot 60 of additions to existing poultry sheds (55' x 175' additions shed and feed shed additions) and the other (Blue AB 274) for the erection on Lot 61 of two poultry sheds (each 288' x 40'). 10 Although it is not entirely clear, it would seem that, although the business had commenced as a business of producing fertilised eggs for sale to chicken hatcheries, as the years passed the business commenced, in addition, to produce commercial eggs for sale. Although, again, the matter is not entirely clear, it would seem that, as from about 1960, eggs which were sold commercially comprised not only eggs which had been produced on site but also eggs which were "imported" from other poultry farms (Blue AB 4-5). It is said (Blue AB 5) that, as from 1967 or 1968, the production of fertilised eggs for sale to chicken hatcheries ceased and production converted totally to the production of commercial eggs for sale. 11 The County of Cumberland Planning Scheme was superseded by the Blacktown Planning Scheme Ordinance ("BPSO") which was notified in the New South Wales Government Gazette on 26 April 1968. 12 Under the BPSO Lots 60 and 61 were located within a Non-Urban (b) Rural (5 acre minimum area) Zone, in which Zone agriculture was a purpose for which buildings or works might be erected or carried out or used without the consent of the responsible authority, agriculture being defined, as in the County of Cumberland Planning Scheme by reference to the definition in s.514A of the Local Government Act 1919. 13 At a later date, which is not clear but which may have been November 1970, the Blacktown Planning Scheme (Amendment No. 2) Ordinance provided that the BPSO be amended (inter alia) by inserting, opposite the words "(b) Rural (5 acre minimum area)" in Column I, in Column II next after the word "agriculture" the words "other than pig keeping or poultry farming". However, clauses 28 and 29 of the BPSO made the usual provision for the continuance of existing non-conforming buildings, works and land use and authorising the alteration, enlargement or rebuilding and new buildings or works ancillary thereto, with the consent of the responsible authority, in respect of existing non-conforming buildings and works. 14 Although the time at which it occurred is not entirely clear, it would seem (Blue AB 2) that at some time in the early 1970's Mr. and Mrs. Gely caused to be incorporated, or acquired the shares in, a company known as Obol Pty. Limited ("Obol") which, although seemingly not acquiring Lots 60 and 61 from Mr. and Mrs. Gely, took over, and thereafter conducted, the egg producing and packing business, for that purpose trading under the name "Chanteclair". 15 In an Affidavit sworn by him on 5 October 1999, Mr. Gely deposed (inter alia) as follows (Blue AB 26): "NEW SOUTH WALES EGG MARKETING BOARD 20. During the period 1974-1988, when the Egg Marketing Board was regulated, a producer needed a license (sic) to have birds, and all eggs produced had to be sent to the Egg Marketing Boards (sic) premises at Lidcombe for grading, packing and distribution by the Board. Only a small number of produces (sic) were interested in packing and distributing at their premises. Our business obtained permits from the Egg Marketing Board as firstly a 'producer/packer' and secondly as a 'producer/agency' authorised to sell to the public. These authorities enabled the business to grade, pack and distribute eggs on site and also to purchase, process, grade and pack off site eggs. Prior to 1968 some fertile eggs were bought and sold but not graded. The volume was small. Since about 1968 the business has graded, packed and distributed eggs which have been laid both on site and off site, and has purchased machinery and provided staff for this purpose. The business arranged to collect off site eggs from poultry farm establishments and transport them to our premises. 21. At least 3 days a week and sometimes 6 days a week the chilled eggs from on site and off site were taken from the cool room to the processing room where the machinery would clean and grade the eggs by weight and size. The eggs would then be packed into cartons and boxes. Up to 1988 the eggs were packed in cartons marketing as "The Good Egg" as required by the Egg Marketing Board. The only identification of the business was a stamp with a code number and the word 'Obol'"
16 In the same Affidavit Mr. Gely also deposed (Blue AB 22-23): "4. I moved overseas to live in France in about 1976-1977, although I still retained an active part (sic) in the business until about 1994-1995. During this period, my son Phillip Gely and other members of the family use (sic) to post and in later years, fax (sic) to me many in house records on the performance of the poultry, given such details as the profit and loss accounts, unit cost per dozen, eggs produced etc. Information was initially sent on a weekly basis by mail. ……… 7. During the period 1977-1995 I would generally travel to Australia about once a year. I would stay in Australia for between 1 to 3 months but sometimes longer depending upon the various projects which were being undertaken. I would closely inspect the premises and the operations therein, and suggest and initiate changes, such as the construction of new building or the provision of new equipment or the financing of the business. When I was absent from Australia, in addition to the mail and fax communications, I would also speak on a regular basis to my son Phillip, and maintain regular contact and monitoring of the business. I conducted the business through the company owned by myself and my wife Obol Pty. Limited."
17 In 1997, the BPSO was amended by Interim Development Order No. 133 ("IDO 133") pursuant to which Lots 60 and 61 were located within a Non-Urban "A" Zone, in which Zone agriculture (other than pig keeping or poultry farming establishments) were permissible without the consent of the responsible authority, while pig keeping establishments, poultry farming establishments, and rural industries might be carried on with the consent of the responsible authority, "rural industry" being defined as meaning "handling, treating, processing or packing primary products produced in the locality and includes the servicing in a workshop of plant or equipment used for agricultural purposes in the locality". 18 In an Affidavit sworn by him on 16 September 1999, Mr. Phillip Gely deposed (inter alia) as follows (Blue AB 5): "26. All the sheds were up and operating by 1981 and contained capacity for approximately 47,000 hens in cages. There would be at any time approximately 40,000 laying hens, plus several thousand pullets and other birds. There could be up to 20,000 'follow up' stock. We were rearing our own birds. The eggs were collected twice a day and stored in the cool room. At peak production, the hens on site produced 200,000-250,000 eggs per week. Eggs brought in from off site could comprise as much as 100,000-150,000 eggs per week during the 1980s."
19 The records of the Council contain a consent (Blue AB 277-278) dated June 1983 to the erection - said (Blue AB 289) to be on Lot 61 - of a packing shed. 20 Insofar as it related to (inter alia) Lots 60 and 61 in Deposited Plan Registered No. 8050, the BPSO was superseded in 1984 by the Blacktown Local Environment Plan No. 64 ("BLEP No. 64"). In BLEP No. 64 Lots 60 and 61 were located in a Residential "H" Zone, in which Zone, although not expressly referred to, development for the purpose of agriculture was permitted with the consent of the responsible authority but development for the purposes (inter alia) of poultry farms and rural industries was prohibited. However, as BLP No. 64 did not otherwise relevantly amend BPSO the provisions in the BPSO as to existing non-conforming buildings and works (Blue AB 133) to which I have earlier referred continued to operate. 21 The records of the Respondent reveal that, in 1987, application was made to it for consent to the erection of new poultry sheds on Lots 60 and 61, but that, in February 1988, consent was refused upon the grounds (Blue AB 280) that: "1. Development is an unreasonable hindrance to future residential development within the area. 2. The use is incompatible for the future surrounding residential land uses. 3. Development will adversely affect the future amenity of the neighbourhood. 4. Development is an undesirable intensification of use which will result in a delay to the implementation of Council's current planning proposals for the area as reflected by Blacktown Local Environmental Plan No. 64."
22 In October 1988 the BPSO, as amended by (inter alia) IDO 133 and BLEP No. 64, was repealed by BLEP 1988, in which plan Lots 60 and 61 in Deposited Plan Registered No. 8050 were located within a Residential "A" zone. 23 The relevant provisions of BLEP 1988 in their original form were as follows: "Aims, objectives etc. 2(1) The aims of this plan are: (a) to repeal all local planning controls applying to Blacktown and replace them with a single local environmental plan; (b) to simplify and modernise the development controls applying to Blacktown; (c) to speed up the planning process in Blacktown by placing in Council's hands broader responsibility for environmental planning of local significance; and (d) to maintain the opportunity for public involvement and participation in environmental planning and assessment by using development control plans to supplement the broad controls in the plan. (2) The objectives of this plan are: (a) to allow for a variety of rural based activities while maintaining the urban potential of relevant rural land; (b) to allow for a variety of residential lifestyles; (c) to allow for a variety of business uses while consolidating existing commercial centres; (d) to enable a variety of uses in industrial areas while protecting the viability of existing retail centres; (e) to prohibit offensive or hazardous industries; (f) to ensure space is provided for community services and facilities; (g) to ensure space is provided for recreational activities and facilities; (h) to ensure land is available to accommodate all required special land uses in the most effective manner; and (i) to protect Blacktown's environmental heritage. ……… Model provisions 5. The Environmental Planning and Assessment Model Provisions 1980 … are adopted for the purposes of this plan. ……… Zone objectives and development control table 9(1) The objectives of a zone set out in the Table to this clause under the heading 'Objectives of zone' appearing in the matter relating to the zone. (2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which: (a) development may be carried out without development consent; (b) development may be carried out only with development consent; and (c) development is prohibited, are specified under the headings 'Without development consent', 'Only with development consent' and 'Prohibited', respectively, appearing in the matter relating to the zone. (3) Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out. TABLE ……… ZONE No.2 (a) (RESIDENTIAL 'A' ZONE) 1. Objectives of zone The objectives are: (a) to make general provision to set aside land to be used for the purpose of housing and associated facilities; (b) to identify existing residential areas of a predominantly single dwelling character, and to maintain that character by prohibiting residential flat buildings; (c) to enable sensitive infill development or other housing types; (d) to enable redevelopment for median density housing forms, including townhouses, villas, cluster housing, semi-detached housing and the like, where such development does not interfere with the amenity of surrounding residential areas; (e) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours; and (f) to allow within the zone a range of non-residential uses which: (i) are capable of visual integration with the surrounding environment; (ii) either serve the needs of the surrounding population or the needs of the City of Blacktown without conflicting with the basic intent of the zone; and (iii) do not place demands on public services beyond the level reasonably required for residential use. 2. Without development consent. Dwelling houses 3. With development consent. Any purpose other than a purpose included in Item 2 or 4 of the matter relating to this zone. 4. Prohibited. Residential flat buildings; purposes listed in Schedule 1." Schedule 1 does not contain any reference to either agriculture or poultry farms, but does contain a reference to "intensive lot feeding of livestock" - which is not defined - and "rural industries" - which would bear the meaning set out in the Environmental Planning and Assessment Model Provisions 1980. 24 In his Affidavit Mr. Phillip Gely further deposed (Blue AB 6-7): "32. In about 1993 Council purchased the drainage reserve, now comprising Lot 162 from my parents. No physical works of alteration have been undertaken by Council of Lot 162 and the farm still obtains daily vehicular and pedestrian access across the drainage reserve between the various sheds and to obtain access to Lalor Road. In addition the current dam and water hole are partly constructed upon Lot 163 and partly within the drainage reserve. Pipes lead from the dam to a pump house which is in the middle of the drainage reserve, and which then pump the water to spray the sheds to the south during hot weather. 33. The terms of the purchase also contain certain obligations by Council to maintain access between Lots 163 and 165, and between Lalor Road and Lots 161/160, so that the farm can continue to operate as a single unit."
and, as well (Blue AB 2-3): "10. The business was originally operated as a partnership by my parents, but then incorporated in the early 1970s in the name of Obol Pty. Limited, now trading as Chanteclair. In the 1990s my wife and I purchased my parents (sic) interests' (sic) in the Company in about 1993-1994 and we are currently the sole directors and share holders of the Company."
(In the absence of any reference, in the latter paragraph, to the subject land, I assume that the title to the land remains in Mr. Guy Gely and his wife and that they are paid rent, or some form of licence fee, in respect of Obol's use of the land). 25 The records of the Respondent contain a consent, dated 21 December 1993 to further development on Lots 60 and 61, that development being the "demolition of an existing storage shed and the associated replacement and redevelopment of a new storage shed for the purposes of egg handling and packaging as part of the existing poultry farm operation" (Blue AB 281). Although that consent was varied in October 1995 (Blue AB 286),the variation appears to relate solely to the plans of the building or buildings proposed to be erected (cp Blue AB 282 and Blue AB 286). The records of the Respondent contain yet a further consent, dated January 1994, to development on Lots 60 and 61, that development being "land filling/earth mounding" (Blue AB 284). 26 The BLEP 1988 was amended in April 1997. Insofar as is relevant to the present case, those amendments were as follows:
27 At some time which does not appear from the materials which are before the Court, BLEP 1988 was further amended by deleting from the material in the Table dealing with Zone No. 2(a) (Residential "A" Zone) Items 2 and 4 and substituting the following: "2. Without development consent. Dwelling houses; family day care centres (where access is gained from a road other than a road within Zone No. 5(b) or 5(c) and where not more than five children are to be cared for); home-based child care centres (where access is gained from a road other than a road within Zone No. 5(b) or 5(c) and where not more than five children are to be cared for). ……… 4. Prohibited. Family day care centres (where access is gained solely from a road with Zone No. 5(b) or 5(c)); home-based child care centres where access is gained solely from a road within Zone No. 5(b) or 5(c)); liquor outlets; residential flat buildings; purposes listed in Schedule 1." 28 The nett result of all this is that, at the time of the lodgment of the Development Application with the Respondent, and at the time of the hearing before Cowdroy J, agriculture, which, by definition, included poultry farms was a purpose which might be carried out within a Residential "A" zone with the consent of the Respondent, while rural industries were prohibited in such a zone. 29 The case which the Appellant sought to advance on the hearing before Cowdroy J appears to have been put in two ways, they being:
31 After setting out the provisions of ss. 106, 107(1) of the EP & Act, Cowdroy J dealt with the Appellant's second case as follows (RAB 14-16): "21. The poultry farming activities have been conducted lawfully. The question to be determined is whether they are now 'prohibited' under the amended LEP. If so the definition of 'existing use' is satisfied. In North Sydney Municipal Council v. Boyts Radio and Electrical Pty. Limited (1989) 16 NSWLR 50 the New South Wales Court of Appeal (at 59) set out the principles to apply when considering the claim of an 'existing use'. An existing use in the present context is one which has been conducted for a lawful purpose before the implementation of the current planning instrument which is prohibited by such instrument. 22. Properly categorised the activity conducted on the premises known as Chanteclair farm is 'agriculture' as defined in the amended 1988 LEP. Such definition specifically refers to the keeping of poultry being the very activity which is conducted at the farm. 'Agriculture' is a use which is not included in the list of prohibited uses set out in Schedule 1 to the instrument. Whilst the operation of packing, sorting and grading of eggs produced on the farm and brought in from other farms may take place, this activity is the end product of the principal activity. Accordingly, the operations do not constitute a 'Rural Industry' as defined. 23. The applicant asserts that the prohibition of such a use can arise not only because the use is included in the Schedule to the amended 1988 LEP but also because it might otherwise be incompatible with the objectives of the 2(a) Residential 'A' Zone) in the instrument. It says that the use of a poultry farm is not only inconsistent with such objectives but also inconsistent with the objectives of the instrument set out in cl 2(2) of Part 1 of the instrument. The applicant relies upon the decision of the New South Wales Court of Appeal in Vaniga v. South Sydney Council (1989) 74 LGRA 86 and the decision of Bignold J in Russo v. Kogarah (1985) 86 LGRA 300. 24. A poultry farm being 'agriculture' is a use which is permissible in the Residential 2(a) Zone with the consent of Council. Vaniga was not a case which dealt with the question of 'existing use' rights and that decision must be confined to the facts of the matter before it. It found that a provision of the Sydney Local Environmental Plan No. 61 prohibited a particular development because of non-compliance with the floor space ratios. In Russo , Bignold J relied upon Vaniga as authority for the proposition that provisions in a planning instrument which qualify a Council's power to grant a development consent can constitute a prohibition sufficient to prohibit an existing use within the meaning of s.106 of the Act. 25. There is to my mind a clear distinction between a use which is prohibited because it is nominated as such in a planning instrument, compared to a use which although is (sic) not listed as 'prohibited' is one for which Council upon a consideration of the various requirements of s.79C of the Act would not grant consent on merit. The former is rendered a 'prohibited' use by virtue of the relevant environmental planning instrument. The latter is not such use (sic) because it is not the provisions of cl (sic) 106(a) which prohibits such use. Rather that use is prevented because the consent of the appropriate authority (in this case the Council) is denied. This does not however render it a 'prohibited' use as defined: see Woolworths Limited v. Dubbo City Council (1997) 99 LGRA 334. 26. The applicant says that the use of a poultry farm in a residential zone is inconsistent with the objectives of the plan and of one or more objectives of the zone and therefore the Council cannot give approval because of cl 9(3). It says therefore that the use is prohibited in this sense. The identical clause was included in the relevant instrument referred to in Woolworths . 27. Again the flaw in the submission lies in the fact that it could not be said that the use is prohibited without Council making a determination of the consistency or otherwise of the development proposal. The decision not to grant consent arises only after the Council is satisfied that the proposed development is inconsistent with the objectives of cl 9(3) of the Instrument. There is no 'prohibition' at the outset. Without such decision it could not be said that the development is 'prohibited' as being antipathetic to the objectives (see Coffs Harbour Environment Centre Inc v. Coffs Harbour City Council and Anor. (1991) 74 LGERA 185 (CA)). A contrary result would subvert the basis of zonings which form the foundation of most environmental planning instruments." 32 Cowdroy J then recorded his conclusion in the following way (RAB 16-17): "CONCLUSION 28. In summary, the findings of the Court are as follows: (a) The proper categorisation of the activity conducted on the subject land prior to the implementation of the amended 1988 LEP is that of a poultry farm. As such its use is that of 'agriculture' as defined in the said instrument and not 'Rural Industry'; (b) It is not a use which is incorporated in the schedule of prohibited uses to the said instrument; (c) A prohibited use is one which is defined as such in the relevant zoning instrument, and not one which may be prevented from implementation following a merit assessment pursuant to 79C of the Act; (d) Accordingly the use of a poultry farm is not one which attracts the benefit of a 'prohibited use' for the purpose of s.106 of the Act; FINDINGS 29. The Court therefore: (1) Finds that the use of the premises does not qualify for the benefit of an 'existing use' as defined in s.106 of the Act. (2) Orders the exhibits be returned." That Conclusion and those Findings were later incorporated in a formal Order of the Court (RAB 18). 33 The grounds of appeal which were taken in the Notice of Appeal filed on behalf of the Appellant were as follows (RAB 20): "1. His Honour erred in holding that the use of Chanteclair Farm for the business of a poultry farm was not an existing use. 2. His Honour erred in finding that the use of the premises as a poultry farm was not a prohibited use within the meaning of Section 106(a) of the Environmental Planning & Assessment Act because it was inconsistent with the objectives of Clause 9(3) of the Blacktown Local Environmental Plan 1988 as amended." 34 When the appeal came on for hearing, Mr. W.R. Davison SC appeared for the Appellant while Mr. J. A. Ayling appeared for the Respondent. 35 Despite the form of the grounds of appeal taken in the Notice of Appeal, on the hearing of the appeal Mr. Davison accepted the submission, which had been advanced by Mr. Ayling on the hearing before Cowdroy J (Black AB 103-113) and repeated in his Written Submissions, that, if the fate of the Appellant's application to the Respondent were held to depend upon whether or not the use of the property as a poultry farm was inconsistent with one or more of the objectives of the plan and one or more of the objectives of the Residential "A" zone, the matter would need to be remitted to the Land and Environment Court, as any decision about the existence and extent of general consistency in the present context is a decision of fact alone and, thus, not for this Court to determine (T. 2, 10, 13). 36 Reduced to their most simple form, the Appellant's submissions were to the effect that Cowdroy J erred in failing entirely to give effect to the expression "having the effect of" as governing the word "prohibiting", the bases for so submitting being that, as a matter of principle, provisions in planning instruments which qualify a council's power to grant development consent in a fashion similar to that contained in clause 9(3) of BLEP 1988 can, and do, operate with the effect of prohibiting an existing use - a submission sought to be based upon the decision in Vaniga Pty. Ltd. v. South Sydney Council and Russo v. Kogarah Council; or alternatively, in a case - such as this was said to be - in which a finding that the use in question was generally consistent with one or more of the objectives of the relevant plan and one or more of the objectives of the relevant zone could not be sustained in law, that use is to be regarded as prohibited - a submissions sought to be based upon the decisions in Coffs Harbour Environment Centre Inc v. Coffs Harbour City Council and Russo v. Kogarah Council; 37 The two alternative approaches may be seen in the passage from the Judgment of Bignold J in Russo v. Kogarah Council which I set out below. That case involved an appeal against the failure of the respondent Council to grant development consent for an application to convert an existing dwelling house, which was located in a "4(b) Light Industrial" zone to be used in conjunction with adjoining premises which were then being used as an existing child care centre. Clause 10(3) of the Kogarah Local Environment Plan was in terms similar to clause 9(3) of the BLEP. The basis of the appeal was that, as, so it was suggested, use of the subject premises as a dwelling house was not consistent with the objectives of the zone, that use constituted an existing non-conforming use which enabled the respondent Council, pursuant to the provisions of ss. 106, 108 of the EP & A Act and Regs. 39, 43 of the EP & A Regulation, to consent to the change of use proposed. 38 In his Judgment in Russo v. Kogarah Council 86 LGERA 300, 307-308, Bignold J wrote as follows: "… in any event, I am unable to accept the respondent's argument that the existing use claim was untenable because the Kogarah Local Environmental Plan, and in particular cl 10(3), did not have the effect of prohibiting the dwelling house use of No. 1 Rocky Point Road. In my judgment cl 10(3) of Kogarah Local Environmental Plan may, on the known facts of the present case be held to 'have the effect of prohibiting' a dwelling house use of No. 1 Rocky Point Road because it would be legally unreasonable to conclude that a dwelling house use was consistent with the stated objectives for Zone No. 4(b) 'Light Industrial': cf. Coffs Harbour Environment Centre Inc. v. Coffs Harbour City Council (1991) 74 LGRA 185 AT 192-193 where it was held that there was simply no basis for holding that an underground pipeline being part of an ocean outfall for sewerage disposal system was generally consistent with the stated objective of a zone permitting public recreational uses. So here in the present case, there is simply no basis for holding that the existing residential use of the existing building would be generally consistent with the stated objectives of Zone No. 4(b) 'Light Industrial'. What I have said is sufficient for solving the present case where the inconsistency of an existing dwelling house use to the objectives of the industrial zone is manifest. Equally it is possible that there may be borderline cases where it cannot be said of a clause like cl 10(3) of the Kogarah Local Environmental Plan, without a far more searching inquiry, whether an existing use is not consistent with a stated zone objective and hence whether the Kogarah Local Environmental Plan 'has the effect of prohibiting that use' within the meaning of s.106. However what can be stated confidently, as a matter of general principle, is that provisions in planning instruments which would qualify a Council's power to grant development consent, in a similar fashion as does cl 10(3) of the Kogarah Local Environmental Plan, can and do operate, with the effect of prohibiting an existing use e.g: see Vaniga Pty. Ltd. v. South Sydney Council (1989) 74 LGRA 86. For the foregoing reasons, I reject the respondent's argument that the applicant's claim to existing use entitlement in the present case is untenable and I hold that the Kogarah Local Environmental Plan, and in particular cl 10(3) has the effect of prohibiting the existing use as a dwelling house of No. 1 Rocky Point Road, within the meaning of s.106 of the Environmental Planning and Assessment Act. It follows from this conclusion that all of the relevant existing use entitlements that I have earlier recited apply in the present case, in the manner I have indicated." 39 If I may, with respect, say so, it does not seem to me that the decision of this Court in Vaniga Pty. Ltd v. South Sydney City Council provides any support for the second of the approaches set out by Bignold J in the passage from his Judgment to which I have just referred. That case involved an appeal from Stein J (as his Honour then was) who had refused to grant to the then appellant a declaration that the Council of the City of Sydney had validly extended a development consent granted by the Land and Environment Court the better part of 2 years earlier than the date of the purported extension. The development consent had been granted prior to the making, and gazettal, of the Sydney Local Environmental Plan No. 61, the floor space ratio and the height of the development to which that consent had been granted being 2.83:1 and 23.5 metres respectively. The relevant clauses of the Sydney Local Environmental Plan No. 61 were as follows: "11. The floor space ratio of any building to be erected or extended shall not exceed the maximum ratio on the H & FSR control map for the site on which the building is located. ……… 17(1) The Council shall not consent to the erection of a building which when erected will have a height exceeding the height in metres specified in the legion Tables on the H & FSH control map in relation to the height control area indicated on that map and in which the building is situated." the relevant floor space ratios and height being 2:1 and 12 metres respectively. The question with which Stein J at first instance and this Court on appeal was concerned to deal was the effect of s.99(1)(a) of the EP & A Act which provided: "99(1) A consent granted under this division to a development application shall lapse - (a) unless the development the subject of that consent is commenced - (i) except as provided in subparagraph (ii) - within 2 years … of the day upon which that consent becomes effective in accordance with s.93 …; or (ii) where within one year of the prescribed date a provision of an Environmental Planning Instrument is made which would, but for sections 100A and 101, have the effect of prohibiting the development - within one year of the date upon which that provision comes into force." 40 In the course of his Judgment, Clarke JA with whom Priestley and Meagher JJA agreed, said 74 LGRA 88-90: "… On the face of it these provisions have the effect of prohibiting the development. The appellant submits that upon closer examination that is not so. The prohibition of which s.99(1)(a)(ii) speaks is an absolute prohibition. This must be so for a conditional prohibition is not in fact a prohibition at all. In substance a provision effecting a conditional prohibition is indistinguishable from one which lays down conditions upon which development will be permitted. ……… In my opinion the submission should be rejected. Prior to the making of the Sydney Local Environmental Plan No. 61 the restrictions imposed under planning instruments concerning floor space ratios and the height of buildings permitted the grant of development applications relating to buildings which had a floor space ratio in excess of 2:1 and were higher than 12 metres. There was no relevant prohibition against the granting of consent to a development involving the erection of a building with a floor space ratio of 2.83:1 and a height of 23.5 metres. Clause 11 of the Sydney Local Environmental Plan No. 61 imposed new restrictions on the floor space ratio and cl 17 expressly provided that the relevant consent authority should not consent to a development pursuant to which a building exceeded specified heights - in this case 12 metres - as proposed to be built. Before the making of the Sydney Local Environmental Plan No. 61 the consent authority was empowered to grant consent where the development proposal involved the erection of a building with standards exceeding those provided in cl 11 and cl 17; after it was made and gazetted, those clauses operated to prohibit the granting of consent to such a building. Whether one pays regard to the words of s.99(1)(a)(ii) before its amendment in 1985 which relevantly were - 'environmental planning instrument having the effect of prohibiting the development' - or the section as it is presently worded, the provisions of the Sydney Local Environmental Plan No. 61 fall within its ambit. There is no doubt that the Sydney Local Environmental Plan No. 61 is an environmental planning instrument and I regard it as having the effect of prohibiting the development the subject of this appeal insofar as the height and floor space ratio of the proposed building exceeds the maximum prescribed in the instrument. If the Sydney Local Environmental Plan No. 61 is read alone there could be no doubt about the correctness of this conclusion - its provisions effected the relevant prohibition - and there is much to be said for the view that s.99(1)(a)(ii) directs attention solely to the provisions of a particular planning instrument." 41 A similar approach was adopted by Priestley JA with whom Stein JA and I agreed in Healesville Holdings Pty. Limited v. Pittwater Council 27 November 1997 (unreported) in which case Talbot J, at first instance, and this Court, on appeal, was concerned to deal with the interaction between two provisions in the Pittwater Local Environmental Plan 1993, those provisions being: "12. (2) A person shall not subdivide land within a zone specified in Column IC of the Table to this clause unless the area of each allotment to be created by the subdivision within the zone will not be less than the area specified opposite that zone in Column II of that Table. ……… 17.(1) Except as provided by this clause, the erection of a dwelling house on land within Zone 1(a), 1(a1), 1(b) or 1(c) is prohibited. (2) A person may, without the consent of the Council erect a dwelling house on an allotment of land within Zone 1(a),(b) or 1(c) where the allotment: (a) was created by a subdivision which was not prohibited under clause 12 …….." 42 In the course of his Judgment, Priestley JA wrote: "The approach I have adopted is substantially similar to the way Clarke JA dealt with an analogous question in Vaniga Pty. Ltd. v. South Sydney Council (1989) 74 LGRA 86 (at 90) where, after saying that recognition that a consent authority has power under SEPP No. 1 to grant consents in the face of relevant provisions of an LEP did not mean that provisions of that particular LEP did not effect prohibitions, he continued: 'All that it means is that the consent authority is vested with power under the State Environmental Planning Policy No. 1 to grant consents despite those provisions of, and prohibitions in, planning instruments concerning development standards.' For the appellant it was said that this passage in Clarke JA's reasons could not be binding on this Court as a matter of strict precedent because it was not part of the ratio decidendi of the case, and further, because in any event the provisions of the LEP here in question were not in the same form as those in Vaniga . I think these submissions were correct, that is, I think this Court is not bound to follow the line of reasoning of Clarke JA. Nevertheless, it seems to me to be sound and I would approach the question of construction in the present case in the same way."
43 The present appeal, which involves a determination of the interaction of the appropriate parts of cl 9 - subcll.(2), (3) and that part of the Table to cl 9 dealing with Zone No. 2(a) (Residential "A" Zone) - in my view invites a similar approach to that taken by Clarke JA in Vaniga Pty. Ltd v. South Sydney City Council and by Priestley JA in Healesville Holdings Pty. Limited v. Pittwater Council. In my view the only developments which are prohibited within a Residential "A" Zone are those set out under Item 4 in the appropriate part of the Table, all other developments - other than those set out under Item 2 in the Table - being permissible with the consent of the Respondent - on this approach, the provisions of clause 9(3) do not operate to prohibit development, but place a limit upon the power of the Respondent to grant consent. 44 Nor, so it seems to me, does the decision of Clarke JA, with whom Sheller JA and Hope AJA agreed, in Coffs Harbour Environment Centre Inc v. Coffs Harbour City Council, to which Bignold J referred in Russo v. Kogarah Council provide any support the case which the Appellant seeks to advance. 45 In Coffs Harbour Environment Centre Inc v. Coffs Harbour City Council, what was involved was a proposal to construct a sewerage line across three blocks of land, that sewerage line leading, first, to a dosing tank, then, to a de-aeration chamber and finally to an ocean outfall at a headland within the then Respondent's council's area which had the colourful name of "Look-At-Me-Now Headland". The land upon which the dosing tank, de-aeration chamber and the ocean outfall - all to be constructed underground - was located in land zoned 6(a) under the Coffs Harbour Local Environment Plan 1988 and was Crown Land which had been dedicated for public recreation. The other blocks of land to be crossed by the sewerage line - also to be constructed underground - were zoned 7(f)(2) under the LEP, one of those blocks - under the control of the then respondent council - being reserved for public recreation and the other - under the control of the Department of Lands - not being the subject of any similar reservation. 46 Insofar as is relevant, that part of the LEP which dealt with zone 6(a) was as follows: "1. Aims of zone The aim is to identify publicly owned land which is capable of being used for recreational purposes. 2. Objectives of zone. The objectives are as follows: (a) to enable the development of land within this zone for recreation purposes; (b) to enable the development of land within this zone for purposes associated with recreation. 3. Without development consent. Advertising structures erected in accordance with clause 17(1); any purpose authorised by Division 2 or 3 of Part XIII of the Local Government Act 1919; drainage; parking; roads; works for the purpose of landscaping; gardening or bush fire hazard reduction. 4. Only with development consent. Any purpose other than a purpose specified or referred to in Items 3 or 5. 5. Prohibited. Except as otherwise provided in this Table, all development unless the Council is satisfied that the carrying out of the development is generally consistent with one or more of the objectives of this zone." 47 The hearing at first instance before Bannon J was concerned only with legal questions and, in order to facilitate their expeditious disposal, the parties agreed on a statement of facts. 48 The nature of those questions, Bannon J's conclusions and Clarke JA's approach appear from the following passages in Clarke JA's Judgment 74 LGRA at 189-193: "It was contended that the development did not fall within pars 3 and 4 and was therefore prohibited. A similar submission was made to his Honour who agreed with it. However, for reasons which appear in the judgment, his Honour concluded that, despite the prohibition in zone 6(a) against the development the appellant's application failed. Subject to one matter with which I will deal later it would seem to me that this conclusion was wrong. If the development is a prohibited one then, as it seems to me, the appellant is entitled to succeed in the appeal. For this reason it is convenient initially to consider the question, which was raised by the respondents in their notices of contention, whether the development is prohibited. The respondents accepted that for land to be used for public recreation and enjoyment so as to be in some sense akin to a public park two conditions must be fulfilled: (1) The land must be, in the relevant sense, open to public generally as of right; and (2) It must not be a source of private profit … The relevant principle for present purposes is that for land to be used for public recreation it must be open to the public generally as of right. Indeed, the Chief Justice said in Woollahra Municipal Council v. Minister for the Environment (1991) 23 NSWLR 710; 73 LGRA 379 that this line of authority 'establishes that local councils which are given the control and management of public parks may only erect upon them improvements whose purpose is to promote or is ancillary to the use and enjoyment of the land in question as a public park or for public recreation. The respondent's counsel submitted, however, that both these conditions were fulfilled. The land will continue to be open to the public generally as of right, there will be no exclusion of the public from any part of the land and no part of the land in question will be a source of private profit. It was submitted that in these circumstances it was open to the Council to be satisfied that the carrying out of the development was generally consistent with the use of the land for recreational purposes. Accordingly, the development on the portion of land within zone 6(a) fell within par 4 and was permissible within consent. It is, fundamental to this submission that the site will remain open to the public as of right. In my opinion the facts do not support that conclusion. I have already indicated that it is anticipated that the works will take about two years to complete and during this period there will be a number of areas of land within the allotment which will be fenced off from the public. Those areas will include the eastern and western compounds and the strip of land on which the access road and pipeline will run. Once the works have been completed the fences will be removed but there will nonetheless be those areas where there are iron grids, admittedly relatively small, which could not regarded as available for public recreation. ……… In my opinion his Honour was correct in his conclusion that the development works were prohibited under zone 6(a). Although the imposition of regulatory and restrictive conditions upon an area of land may be compatible with its use for public recreation and enjoyment that does not mean that a local government or other relevant authority has power to erect upon the land improvements other than those whose purpose is to promote, or is ancillary to, the use and enjoyment of the land as a public recreation area. ……… The sewerage works proposed by the first respondent could not be regarded as promoting, or as ancillary to, that use of the headland and as the fencing clearly excludes members of the public from large sections of it the conclusion seems inescapable that neither the fencing nor the works could be regarded as permitted developments. ……… Under par 3 specific developments are permitted without consent. They are, in general, works which may be regarded as ancillary to the public enjoyment of the area. Paragraphs 4 and 5 then permit other developments provided they are capable as being regarded as generally consistent with a public recreational use of the area. There are many developments which may not fall within par 3 which nonetheless may be compatible with that use of the land but the construction of a sewerage treatment plant could not possible (sic) be regarded as one of them. It is not suggested that if the plant was being constructed upon ground level it would be permissible under the table. Nor could it be. What is said is that it is being built underground and will cause only minimal interference to the recreational use of the land and is, for this reason, compatible with the zone objectives. In my opinion it is a fallacy to suggest that because the proposed works will only inhibit public access to the land for a temporary (albeit lengthy) period and thereafter interfere only marginally with the public enjoyment of it they are compatible with the lands used for public recreation. ……… In my opinion, there is simply no basis upon which it could be said that these works are 'generally consistent' with public recreational use. While it would not be desirable to endeavour to define the ambit of pars 4 and 5 it seems to me that they are designed to permit developments which may not promote public recreation in a strict sense but which may be complementary or ancillary to a particular recreational use of the land. Whatever is their precise ambit the paragraphs do not permit an antipathetic development whether or not it is so place as to minimise the interference with public recreational use." 49 As will be apparent from what I have recorded, what was sought in Coffs Harbour Environment Centre Inc v. Coffs Harbour City Council was a declaration that the resolution of the Respondent Council to construct the ocean outfall at the headland was void and of no effect; the proceedings were conducted on the basis of admitted facts; and the question posed for determination, both at first instance and on appeal, was whether, in the circumstances, the construction of the proposed ocean outfall was a prohibited development. While it may be that, in a case such as that was, it is possible to say that the proposed construction could not possibly be regarded as generally consistent with one or other of the objectives of the zone, the present is not such a case for if, contrary to the view which I have earlier expressed in determining whether or not the use of the land for agricultural purposes is prohibited within a Residential "A" zone, it is necessary to determine whether or not such a use is consistent with one or more of the objectives of the BLEP and one or more of the objectives of the zone, it would first be necessary, as the Appellant now recognises, for the matter to be remitted to the Land and Environment Court in order that the relevant facts might be determined. 50 In the result, however, as I have earlier recorded, it is my opinion that Cowdroy J did not err in holding that the use of the land as a poultry farm was not prohibited and thus was not an existing non-conforming use. 51 I propose the following Orders:
52 BEAZLEY JA: I agree with Powell JA. **********
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(2001) 116 LGERA 356
(1993) 79 LGERA 321
(1989) 16 NSWLR 50
(1991) 74 LGERA 185
(1991) 23 NSWLR 710