James Godfrey v Wollondilly Shire Council

Australian Native Landscapes Pty Limited v Baulkham Hills Shire Council [1998] NSWLEC 31; Domachuk v Baulkham Hills Shire Council (1992) 77 LGRA 395; Egan and Others v Hawkesbury City Council and Another (1993) 79 LGERA 321; Hawkesbury City Council and Another v Sammut (2002) 119 LGERA 171; CASES CITED: Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99; Mittagong Mushrooms Pty Ltd and Another v Narrambulla Action Group Inc and Another (1998) 97 LGERA 333; North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd and Others (1989) 16 NSWLR 50; Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305

DATES OF HEARING: 11/12/2006, 12/12/2006, 13/12/2006, 18/12/2006

APPLICANT Ms A Pearman (11 - 13/12/2006) Mr P Clay/Ms A Pearman (18/12/2006) SOLICITOR LEGAL REPRESENTATIVES: Moloney Lawyers

RESPONDENT Mr M Wright SOLICITOR Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: A. Introduction 1 Mr Godfrey owns Lot 2 in DP 570466 at Wonga Road, Picton (the site). The Council granted three development consents with respect to the site between 1994 and 2000 - being consents for a "dwelling and shed for storage of earthmoving equipment", a "wholesale sand and soil yard" and a "retail plant nursery" respectively. The use made of the site thereafter caused significant impacts on two of Mr Godfrey's rural residential neighbours, particularly from noise, dust and vibration.

2 These impacts ultimately resulted in a dispute between the Council and Mr Godfrey (and related entities) about the scope of the three consents, which is the subject of separate proceedings in this Court. In the meantime, on 10 October 2005, Mr Godfrey lodged a development application seeking consent to use the site for "a rural industry, extension to an existing building and new shed, construction of silt ponds, underground fuel tank, formalising primary product stockpiles and ancillary activities". The Council refused that application on 9 August 2006 on the ground that insufficient information was provided to enable the Council to assess the application as required by s 79C of the Environmental Planning and Assessment Act 1979 (the EPA Act). These proceedings are Mr Godfrey's appeal against the refusal of his application (s 97 of the EPA Act). Commissioner Brown assisted me in this matter.

3 Mr Godfrey supplemented and amended the development application throughout the appeal. The Council (to its credit) took no objection to this course, and dealt with a large amount of additional information in a short time to assist in the timely resolution of this appeal. Ultimately, the Council maintained that the application, in its final form, should be refused consent on three primary grounds: (1) The proposed development is for purposes prohibited from being carried out on the site by the Wollondilly Local Environmental Plan 1991 (the LEP).

(2) The proposed development would have unacceptable noise, dust and vibration impacts on the adjoining rural residential properties. The extensive physical and operational measures required to ameliorate those impacts demonstrated the unsuitability of the site for the proposed development and its inconsistency with the objectives of the zone in which the site is located and certain provisions of Development Control Plan No. 36 - Rural Development (DCP 36).

(3) The application did not contain information demonstrating satisfactory internal traffic arrangements for the site, necessary given the number of heavy vehicles proposed to access the site as part of the development and their likely interaction with smaller passenger vehicles also accessing the site. 4 The Council accepted that its other issues of concern, as identified in a statement of issues filed on 6 October 2006, were capable of being addressed by conditions.

5 The site is 5.42 hectares in area and generally triangular in shape. It is zoned 1(a3) "Rural A3 Zone" under the LEP. Part of the northern boundary has frontage to Wonga Road, with the balance of that boundary adjoining a recycling and waste depot (in a special uses zone) owned by the Council and operated by Thiess. Currently, a large shed on the site's northern boundary accommodates an office and area within which various soils, sands and related products are sold. Various product bins and stockpiles of raw materials (sands, soils, turfs, blue metal, manures, composts, mulches, barks, chips, pebbles and the like) are located in the northeastern section of the site. Builders, tradespeople and others can access this area to buy larger quantities of these materials. There is another large shed and attached office (formerly a dwelling) on the western boundary and a large central cleared and unsealed area, including various parking areas. Mr and Mrs Walker live on their property adjoining the western boundary of the site. Mr and Mrs Kalpaxis live on their property adjoining the southwestern boundary. Their properties are two of the four lots also zoned 1(a3) located on the site's western boundary. Picton Bus Lines owns the most northerly lot, on the corner of Wonga Road and Remembrance Drive. The bus line wishes to establish a bus depot on that lot, but has not submitted its development application.

6 The application (as amended and supplemented) proposes the following: (1) The storage, servicing, maintenance and repair of vehicles, plant and equipment (in summary, trucks, utes, vans, trailers, tippers, excavators, bobcats, loaders and the like) in designated areas on site, and the loading and unloading of such vehicles, plant and equipment in designated areas to enable their despatch, with operating personnel, to other sites. The vehicles, plant and equipment are proposed to be limited to nominated classes (with maximum numbers and weights identified). The servicing, maintenance and repair activities are to be carried out wholly within the existing shed on the western boundary. That shed is to be subject to acoustical treatment. An enclosed truck wash area adjacent to the existing shed is also proposed, as well as an adjoining new shed for storage (both to be subject to acoustical treatment). The applicant submitted that this is development for the purposes of an earthmoving establishment (a defined term in the LEP).

(2) The stockpiling of nominated primary products (similar to the existing soil, sand and related products) in designated areas (both in bins and loose stockpiles) for the purpose of wholesale to builders, tradespeople and the like. Buyers will drive their vehicle to the relevant stockpile or bin where it will be loaded using a front-end loader. They will pay for the product in the existing office within the shed on the northern boundary. Vehicles, plant and equipment associated with this activity (excluding those of customers) are identified as part of the list submitted by Mr Godfrey to supplement the application. The applicant submitted that this is development for the purposes of a rural industry (a defined term in the Model Provisions, incorporated in the LEP).

(3) The use of the existing shed on the northern boundary - 300 m2 to be occupied by indoor plants and aquatic plants in pots available for retail sale and the balance of the area of that shed (excluding the existing offices) to be used for the retail sale of sand, soil and related products. An area of about 350 m2 between the existing shed and northern boundary will be used as an outdoor plant area, with a small area of about 50 m2 on the southern side of the shed will be used for semi shade plants. The existing office will be used for the retail sale of the plants and soil and sand products. The applicant submitted that this is development for the purposes of a retail plant nursery (a defined term in the Model Provisions, incorporated into the LEP).

(4) The decommissioning of an existing above ground and an underground fuel tank and bowser to be replaced by a new underground fuel tank and bowser in an area identified as part of the earthmoving establishment.

(5) Two sediment control ponds (one with a capacity of 600 m2 and the other of 400 m2) on the eastern boundary, located 40 and 50 metres respectively from the bank of Pack Gully creek.

(6) Ancillary parking, water tanks, septic tanks, sediment control fences, acoustical treatment of existing and proposed sheds will also be provided as shown on the plan (exhibit N). That plan also shows an acoustical wall (intended to be 2 metres high) along the western boundary adjacent to the proposed departure zone at the Wonga Road frontage and extending to the existing shed. As noted, the existing and new sheds are to be acoustically treated. The acoustic wall (6 metres high) recommences at the end of the truck wash shed and extends a short distance to an earth berm (4 metres high) with a 2 metre acoustic wall on top.

(7) The southernmost part of the site is proposed to be an exclusion zone. This area, and an area along the eastern boundary, is the subject of a preliminary weed eradication and vegetation rehabilitation and management plan. Landscaping of the earth berm is also proposed. An arboricultural assessment identifies that the development will require the removal of 22 trees, which are to be replaced at a ratio of 2:1 in accordance with the recommendations contained in that assessment.

7 The site is within Zone No. 1(a3) (Rural "A3" Zone) under the provisions of the LEP. This is one of nine rural zones. The objectives for the 1(a3) zone are as follows: (a) to protect the agricultural potential of rural land and to prevent fragmentation of viable rural holdings, and (b) to prevent inappropriate, premature and sporadic subdivisions and to ensure consolidation of urban areas so as to enhance the prospect of economic provision of services, and (c) to prevent, on the fringe of urban areas, the subdivision of land into small lots which would prejudice the proper layout of additional urban areas as a result of natural growth, and (d) to retain the scenic quality and overall character of the land, (e) to encourage agricultural activities that are within the rural capability of the land.

8 The land use table (cl 10) provides as follows: 2 Without development consent Agriculture (other than intensive livestock keeping establishments).

3 Only with development consent Any purpose other than a purpose included in Item 2 or 4.

4 Prohibited Amusement centres; boarding-houses; car repair stations; commercial premises; granny flats; industries (other than extractive, offensive, hazardous or rural industries); motor showrooms; multiple dwellings; plant and equipment hire; service stations; shops (other than general stores and produce stores).

9 Clause 6(1) of the LEP contains the following relevant definitions: " earth moving establishment " means a building or place used for the storage of earth moving equipment, including facilities for the parking, servicing and repair of that equipment but does not include a building or place used for the sale of goods.

"plant and equipment hire" means a building or place used to hire out tools, plant and equipment used by builders and do-it-yourselfers and for the service and maintenance of the tools, plant and equipment. It includes a building or place used for the hire of party/function equipment which requires a large area for handling and storage and easy and direct vehicular access for collection of party/function hire equipment by customers.

10 Clause 7 adopts parts of the Model Provisions including these definitions: "car repair station" means a building or place used for the purpose of carrying out repairs to motor vehicles or agricultural machinery not being: (a) body building, (b) panel beating which involves dismantling, or (c) spray painting other than of a touching-up character. "commercial premises" means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause. "industry" means: (a) any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962 , or (b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business, but does not include an extractive industry. "offensive or hazardous industry" means an industry which, by reason of the processes involved or the method of manufacture or the nature of the materials used or produced, requires isolation from other buildings. " retail plant nursery" means a building or place used for both the growing and retail selling of plants, whether or not ancillary products are sold therein. "rural industry" means handling, treating, processing or packing of primary products and includes the servicing in a workshop of plant or equipment used for rural purposes in the locality.

11 Clause 10(3) provides that: Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

12 Other provisions of the LEP identified as relevant by the Council are cl 20 (council shall not consent to an application for development on land with a Mine Subsidence District unless it has first obtained the concurrence of the Mine Subsidence Board) and cl 45 (the council must not grant consent to the carrying out of development on unsewered land unless the applicant demonstrates that the land is capable of supporting the development having regard to the capability of soil for effluent disposal and buffer distances to water courses and drainage depressions). The Council identified that all relevant matters arising under these clauses were addressed by the application or capable of being addressed through conditions of consent.

13 Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean River ("SREP 20") applies to the site. The overall aim of SREP 20 is "to protect the environment of the Hawkesbury-Nepean River system by ensuring the impacts of future land uses are considered in a regional context". Clause 4 requires a consent authority in determining an application for consent to development to take into consideration the general planning considerations set out in cl 5 and the applicable specific planning policies and recommended strategies set out in cl 6. The relevant strategies relate to water quality and water quantity. The Council identified that all relevant matters arising under this instrument were addressed by the application or capable of being addressed through conditions of consent.

14 DCP 36 applies to the site. The purpose of the plan is to ensure that development carried out in rural zones does not detract from rural amenity (cl 1.3). Part 2 of DCP 36 addresses "Environmental Protection". Its objective is to ensure that development takes account of the physical constraints of the land and to promote development in harmony, rather than in conflict, with the environment (cl 2.1). The substantive provisions of this part (as relevant) concern erosion and sediment control and tree preservation. Part 7 addresses non-rural development. Clause 7.1 identifies that the Council is particularly concerned to ensure that such development does not create a noise nuisance, is located on roads appropriate to the expected volume of traffic generated by the development, provides adequate car parking, makes adequate provision for access by disabled persons and ensures the privacy of residents of adjacent development.

15 At the request of the parties, the Court appointed Mr Brian Clarke as the single acoustical expert. Many of the amendments to the proposed development arose from Mr Clarke's assessment of the acoustical information submitted in support of the application and associated recommendations. Mr Clarke concluded that the amended proposal (assessed on a "worst case" basis in terms of vehicles, plant and equipment operation) was capable of satisfying the requirements of the Department of Environment and Conservation's Industrial Noise Policy for residential receptors, provided that the proposed acoustical treatments (including walls, treatment of the sheds on the western boundary, earth berm and exclusion of activities from the exclusion zone) were implemented and that the development represented an opportunity to improve the acoustical amenity around the site given the existing activities.

16 Mr Clarke's assessment did not consider any activity on site before 6.30am other than departures from the departure zone from 6.00am. He considered that, although commencing operations at 6.30am on Saturdays would comply with the Department's criteria for sleep arousal (subject to all acoustical treatments being satisfactorily implemented), a commencing time of 7.00am would be more reasonable. Before 7.00am was considered to be "night" for acoustic purposes, triggering the sleep arousal criteria. The previous Environmental Noise Control Manual supported this approach, although Mr Clarke recognised that it was not part of the current Industrial Noise Policy.

17 Mr Clarke assessed the potential for vibration in accordance with the Department's technical guidelines (for both amenity and structural damage). He concluded that vibration could be perceptible at the nearest residential building (the Walkers' home), but was likely to be well below acceptable limits for structural damage and human comfort. Mr Clarke recommended certain management measures to assist in mitigating perceived vibration impacts. These included paving and stabilising the areas of the site designated for parking and movement of vehicles consistent with the recommendations of Morse McVey and Associates, consulting engineers, lodged in support of the application and avoiding any testing of vibratory rollers on site.

18 Mr Clarke recommended certain other measures to reduce perceived noise and vibration impacts from the site including the effective maintenance of all vehicles, plant and equipment and minimising the dropping of heavy items of plant (for example, during loading and unloading activities). He also recommended that the existing heavy truck parking area no 1 be used in preference to area no. 2 (to increase the distance of heavy vehicle movements from the western boundary).

19 Mr Scott Freeman, consulting horticulturalist and arborist, gave evidence. Mr Freeman prepared the arboricultural assessment, weed eradication and vegetation management plan and flora and fauna impact assessment that were lodged to supplement the application. Mr Freeman concluded that the site had originally supported shale sandstone transition forest (a threatened ecological community). The carrying out of clearing and commercial activities on the site had resulted in an open area with remnant trees of minimal ecological value. The development would not have any significant effect on the ecological values of the site provided that the undisturbed area along the eastern boundary was protected from impacts as proposed. The proposed weed eradication and rehabilitation areas would also offset any minor loss of foraging habitat caused by the removal of some of the remnant trees.

20 Mr David Haskew and Mr Michael Brown, consulting town planners, gave evidence. Mr Haskew and Mr Brown disagreed about the permissibility of the proposed development. Mr Brown considered the "earthmoving establishment" to be an "industry", but accepted that the sand and soil yard was a "rural industry". He thought the large stockpiles of products said to be part of this activity were more likely to be associated with the "earthmoving establishment". Mr Brown did not accept that the proposed retail sale of plants was a "retail plant nursery" as the development did not include a "sizeable outdoor area" for growing plants in the ground. As such, this activity should be characterised as a "shop" and was prohibited in the zone.

21 Mr Brown was concerned about potential dust impacts from large unconfined stockpiles on site. Mr Hakew observed that the operational management plan lodged to supplement the application proposed spraying all such stockpiles with a soil binding agent to be applied twice a month. That plan also recommends a general spraying program for the stockpiles capable of causing a dust nuisance. Mr Brown considered that all primary products should be stored in bins equipped with dampeners for dust control. Mr Godfrey, through his counsel, also offered to cover all bins of fine material, although those bins were not identified in the evidence. Mr Brown was otherwise concerned that the proposed development remained unclear, confusing and difficult to assess, with inadequate traffic and parking information, and no information about disabled access or toilet facilities. Mr Haskew considered the worst-case traffic generation associated with the development to be very minor compared to overall Wonga Road traffic and that adequate off street parking was proposed on site. Disabled access and toilet facility requirements could readily be the subject of conditions. Otherwise, the planners agreed that the principal issue was the potential impact on neighbouring properties. Mr Brown concluded that the nature and extent of the acoustical treatment measures required was indicative of the non-rural character of the proposal.

22 Mr Steve Moon (Council's development engineer), Ms Helen Arnot (Council's stormwater projects officer) and Mr Mark Passfield (geotechnical engineer, Morse McVey and Associates) provided a joint report to the Court. Before the conclusion of the hearing, the Council accepted that all issues relating to sediment control and water quality were capable of being addressed by conditions of consent.

23 Mr Barry Saxton, traffic and transport engineer, prepared a report to supplement the application. That report concluded that off-site traffic impacts were immaterial and that "the revised car parking layout and roadmarkings are within the guidelines for this type of establishment, and all safety measures have been taken to reduce the likelihood of a vehicle accident within the development". The Council accepted that there was no off-site traffic issue but maintained that the potential for on site interactions between passenger vehicles, pedestrians and heavy vehicles warranted far more detail than provided by the application about internal traffic arrangements.

24 A draft operational management plan was lodged to supplement the application. Many of the provisions of that draft plan overlapped with the draft conditions of development consent identified by both parties as necessary to be imposed on the development should consent be granted. The draft plan addressed employees' roles, responsibilities and training, hours of operation, maintenance, repair and servicing of vehicles, washing of vehicles, loading and unloading of vehicles, noise complaints protocols, traffic speeds and management, dust and erosion control and the like.

25 Mr and Mrs Walker's property adjoins the western boundary of the site. Their letters of objection identified numerous concerns with the activities carried out on site from 1994 onwards and as proposed. They identified the main impacts of the existing activities on their amenity as routine emission of offensive noise, dust and odours and the consequential destruction of their rural residential amenity. They described the noise as "heavy industrial noise" including panel-beating, hammering, dropping of ramps and tailgates, hissing air brakes, reversing and warning beepers. They had to keep their windows shut on most days to ameliorate the noise, dust and odour impacts. They considered that the application proposed prohibited development (being industrial commercial development) and failed to address numerous relevant matters (bushfire threats and the requirements of cl 36 of the LEP, traffic impacts and the requirements of cl 29 of the LEP, pollution of the creek, past and proposed destruction of the shale sandstone transition forest, inconsistency with the aims of the LEP and the 1(a3) zone, the provisions of DCP 36 and the Agricultural Lands DCP). Mr and Mrs Walker gave evidence both on site and in the Court. This evidence was generally consistent with their letters of objection. Their objections remained despite the amendments to the application. They also referred to vibration impacts and their concerns with the appearance of the acoustic walls and large earth berm - which they considered incompatible with the rural residential character of the locality. They considered that the grant of consent would entrench an intolerable situation.

26 Mr and Mrs Kalpaxis objected to the proposed development. Their property adjoins the southwestern boundary of the site. Their letter of objection identified many concerns similar to those of Mr and Mrs Walker, including severe noise, dust, vibration and odour impacts arising from the use of the site since the 1990's. They identified the use of the site as a "heavy industrial property" involving the use of large machinery, trucks and earth moving vehicles. They too were concerned about the impacts on the creek from silt, rocks, pebbles and discarded equipment associated with the on site activities.

27 Mr and Mrs Hilder live on the corner of Remembrance Drive and Wonga Road. They were not affected by the activities on the site, but were affected by the Thiess trucks going to and from the waste recycling depot.

28 Commissioner Brown and I inspected the site and neighbouring properties. During our inspection, few, if any, activities were being carried out on the site. The waste recycling depot was operating, however. The properties of the Walkers and Kalpaxis's are well separated from the waste recycling depot (mainly by the site). The Hilders' property is some considerable distance from the site and waste recycling depot, but fronts Wonga Road and is thus directly exposed to truck movements along that road.

29 The Council submitted that the proposed development was prohibited for the following reasons: (1) The uses of the site could not be broken down into three permissible categories of development (earthmoving establishment, rural industry and retail plant nursery). The activities on site had to be considered together as they were in fact interrelated and would give rise to inseparable impacts, the magnitude of which is outside the contemplation of the zone. Considered in this manner, the proposed development was a large commercial activity, properly characterised as commercial premises, and prohibited in the zone.

(2) If the uses were artificially separated as proposed in the application, then the purported earthmoving establishment and retail plant nursery were prohibited in any event. The essence of the proposed earthmoving establishment was not storage as required by the definition, but the hiring out of equipment and its service and repair (much like a car repair station). The retail plant nursery was just an area for selling plants in pots. The area was not to be used for growing plants, but selling them. Hence, the use was in fact a shop.

30 Although the Walkers' objection referred to the decisions in Egan v Hawkesbury City Council (1993) 79 LGERA 321 and Domachuk v Baulkham Hills Shire Council (1992) 77 LGRA 395, the Council did not submit that either decision was relevant to the resolution of the permissibility issue. I infer that the Council considered both decisions distinguishable on the facts. If so, I think the Council was correct.

31 In Egan, the zoning table expressly prohibited industries, light industries and offensive or hazardous industries, but was silent about extractive industries. The Court refused to read the zoning table as implicitly permitting extractive industries by reason of mere omission - extractive industries were a type of industry and thus were prohibited. The same result was reached in Hawkesbury City Council v Sammut (2002) 119 LGERA 171, where the omitted use was rural industries. Here, the zoning table is not silent. It provides that industries (other than extractive, offensive, hazardous or rural industries) are prohibited. The express exclusion of types of industries from the prohibition must be given effect. Rural industries (as well as extractive, offensive or hazardous industries) are thus permissible in the zone, even though they are a type of industry (see, by analogy, Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333 - where the permissibility of rural industries was assumed on the basis of a similar zoning table).

32 In Domachuk, the principal business was the mixing of ingredients to produce potting mixes. Many of the ingredients were found not to be primary products as they had already been processed and packed before being introduced to the site. By contrast, the Council made no submission in this matter that the products proposed to be stored on the site were other than primary products or that the proposed stockpiling and packing of the products (whether into vehicles or containers) was other than the handling of primary products. The Council accepted that, if that activity could be considered separately (contrary to its primary submission), then it was a rural industry. This concession seems to me to be consistent with the proposed activity - for example, the product list appears largely (if not exclusively) to involve "products composed of natural matter or matter developed by natural means" (Australian Native Landscapes Pty Limited v Baulkham Hills Shire Council [1998] NSWLEC 31).

33 I accept that there are aspects of the proposed uses that are interrelated. For example, the vehicles, plant and equipment list relates to both the rural industry and the earthmoving establishment. The servicing and repairs of all vehicles, plant and equipment will take place in the shed said to be within the earthmoving establishment section of the site. Primary products said to constitute the rural industry are bagged and made available for sale within the retail plant nursery. According to the plan, about one third of the indoor area is set aside for sale of these products.

34 I do not think that the interrelationship of aspects of the proposed uses dictates their characterisation in this case. The common pool of vehicles, plant and equipment (and most likely, employees) and the making available of smaller quantities of the primary products in the retail plant nursery area are features of the activities for which consent is sought. There are other features, however. The end or object to be served by the activities said to be an earthmoving establishment is a place to store, service and repair vehicles, plant and equipment to be hired out, with operators. The nominated classes of vehicles, plant and equipment, moreover, are suitable for use in a particular type of construction activity - namely, civil engineering works, generally involving earthmoving. The end or object of the activities said to be a rural industry is a place to store and stockpile primary products for the purposes of wholesale to builders and tradespeople, with some packing of the products into small quantities appropriate for retail sale from the retail plant nursery. The end or object of the activities said to be the retail plant nursery is a place within which to grow and sell plants, largely within pots, and primary products in association therewith. For planning purposes, these are separate ends or objects involving different activities, generating different requirements for vehicles, plant and equipment and different potential impacts (which, I accept, must be assessed cumulatively when determining the merits of the application). For example, none of the evidence suggested any particular impact associated with the retail plant nursery. That activity is also most unlikely, by reason of its character, to involve the use of any of the heavier equipment associated with the other activities.

35 In Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310 McHugh JA observed that: …the purpose of the use of land [is] to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires the characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place.

36 In North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1998) 16 NSWLR 50 at 59, Kirby P (as he was) said at 59 that: 1. Defining the "existing use" depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ. 2. Nevertheless, the general approach to be taken is one of construing the "use" broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question. 3. In determining that genus , attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.

37 In this case, I am satisfied that the appropriate approach to characterisation of the activities for the purposes of determining permissibility under the zoning table is to recognise that the character, extent and features of the activities readily divide into three as submitted by the applicant. I do not think that the potential cumulative impacts of the uses on the amenity of the neighbourhood can alter the fact that there are three activities proposed. Those impacts, considered together, are relevant for other purposes (including the operation of cl 10(3) of the LEP and the assessment under s 79C of the EPA Act), but do not have the effect of making the three activities one for the purpose of determining permissibility. Whether the three uses as proposed are permissible is a separate question.

38 In the 1(a3) zone, all development is permissible with consent unless permissible without consent or prohibited. As noted, rural industries are permissible even though they are a type of industry. Similarly, retail plant nurseries are permissible, even though they are a type of shop (because shops do not include buildings or places elsewhere specifically defined). Commercial premises also do not include buildings or places elsewhere specifically defined. Rural industries and earthmoving establishments are elsewhere specifically defined. It is necessary to deal with each of the Council's arguments in this context.

39 First, I do not accept that the proposed earthmoving establishment is outside the relevant definition because of the intention to service and maintain the vehicles. The LEP must be construed as a whole. The definition of earthmoving establishment contemplates the storage and the parking, servicing and repair of earthmoving equipment, but not the sale of goods. I am satisfied that the nominated vehicles, plant and equipment are within the ordinary meaning of "earthmoving equipment". No sale of the equipment (or any good) is proposed as part of this activity. A car repair station is a place not for storage, but for the carrying out repairs to motor vehicles or agricultural machinery whether or not stored on the same site. It follows from the definitions and the structure of the zoning table that if earthmoving equipment is stored on the site, the servicing and repair of that equipment is permissible with consent as part of an earthmoving establishment. That aspect of the activity does not transform the use into a car repair station.

40 Secondly, I find it difficult to envisage an earthmoving establishment that did not hire out vehicles and operators. The nature of earthmoving equipment is such that some training or experience would generally be required to operate it. It seems to me that the purpose of the definition is to identify a class of use involving a place to store, service and repair earthmoving equipment to be used on other sites, which common sense suggests is generally achieved by hiring out the equipment and a trained operator. "Plant and equipment hire" is specifically defined in the LEP and prohibited in the zone. Is the proposed use in fact "plant and equipment hire" so that it is prohibited notwithstanding the fact that it is also an "earthmoving establishment"? Although I did not have the benefit of submissions directed to this specific issue, I do not think that conclusion is correct. This is not a case where, for example, one use (such as rural industry) is an example of another broader class of use (industry). The definitions of earthmoving establishment and plant and equipment hire, and their treatment throughout the LEP, disclose an intention to create two separate classes of use. For example, in the 1(a) to 1(b) zones, plant and equipment hire is expressly prohibited, but earthmoving establishments are not. In the 1(c) and 2 zones, plant and equipment hire and earthmoving establishments are both expressly prohibited. Moreover, the essence of an earthmoving establishment is earthmoving equipment, which I consider to be directed to a particular type of construction activity - primarily, an aspect of civil engineering works, making land ready for development, generally requiring a trained operator to work the equipment. The focus of plant and equipment hire is "tools, plant and equipment used by builders and do-it-yourselfers" - which I consider to be directed to another type of construction activity - primarily, building work involving equipment that an untrained person may also use. While some cases may give rise to difficulties of characterisation, the equipment proposed to be stored and serviced on the site is clearly earthmoving equipment (requiring trained operators proposed to be hired out with the equipment) and not suitable for use by "builders and do-it-yourselfers".

41 Thirdly, I do not accept that the fact that much of proposed retail plant nursery involves plants in pots, rather than in the ground, means that the place is not being used for the growing and retail selling of the plants. Many plants are propagated in pots. Common experience suggests that many retail plant nurseries grow and sell plants in pots. The plants will grow at the site for whatever period they are held on site before sale. The definition does not prescribe that the growing of the plants must be in natural ground, as opposed to pots. As the products to be grown and sold are plants, the proposed use is a retail plant nursery and not a shop by definition. The definition of retail plant nursery also contemplates the sale of ancillary products. Common experience again suggests that such products often include empty pots, small gardening equipment and garden and potting supplies, such as soils, sand, pebbles and the like. Provided the goods are ancillary to the retail plant nursery, their sale is permissible with consent.

42 For these reasons, I do not accept the Council's submissions that the 1(a3) zoning table prohibits the proposed activities. The activities are permissible with consent as an earthmoving establishment, a rural industry and a retail plant nursery.

43 I accept the evidence of the Walkers and the Kalpaxis's about the severe impacts on their amenity caused by the activities carried out on site since about 1994. Although no activities were carried out on site during our inspection, the absence of any measures to ameliorate the obvious potential impacts of noise and dust was apparent. There was no evidence on site of any measures, physical or operational, having been implemented to mitigate the impact of the activities. I accept that both neighbours have been exposed for many years to noise, dust and vibration as a routine part of the site's operations and that their complaints to Mr Godfrey, until the Council took action, had not resulted in any improvement. Moreover, both the Walkers and the Kalpaxis's identified that various other activities had taken place, that did not form part of the application (including the use of much larger plant, equipment and vehicles, as well as rock crushing and processing) and which can readily be understood to have resulted in even more distressing impacts. In this context, their objections to the development application are readily understandable.

44 The proposed development, in contrast to the past situation, incorporates significant ameliorative measures. The Council accepted that the proposal (with those measures) would comply with noise and vibration guidelines for residential amenity. The Council's most powerful submission was not that the uses would generate unacceptable noise and vibration impacts (as Mr Clarke's evidence was to the contrary), but that the nature and extent of the ameliorative measures required to make those impacts acceptable demonstrated the inconsistency of the proposal with the zone objectives and character of the neighbourhood.

45 The Council accepted that evidence and allegations of past breaches of the three development consents could not found any assumption of future breach (referring to Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 and the authorities cited therein), but submitted that it disclosed the serious nature of the overall impacts sought to be confined by the ameliorative measures. In a colourful, but helpful, submission, the Council described the final proposal, with all its ameliorative measures, as an attempt to "cage a monster" - an attempt the Council considered inappropriate in a zone which it said never contemplated activities of this character or magnitude.

46 This submission warrants careful consideration, particularly given, on the one hand, the residents' evidence about the serious impacts on their amenity caused by the present operations (occurring absent any ameliorative measures) and, on the other hand, the unchallenged evidence of Mr Clarke that two of the main impacts (noise and vibration) would be appropriately ameliorated by the measures incorporated in the final version of the application and his recommended conditions - which evidence I accept. The starting point for assessing the submission must be the LEP and, in particular, the nature of the 1(a3) zone.

47 Given the emphasis in the Council's evidence on the rural residential character of the zone and area, it is relevant to note that the LEP permits with consent many uses in the 1(a3) zone that, for example, are prohibited in the 1(c1) (Smallholdings) zone (such as, extractive, offensive and hazardous industries, abattoirs, animal boarding and training establishments, earthmoving establishments, intensive livestock keeping establishments, liquid fuel depots, road transport terminals and stock and sale yards). These permissible uses are likely to have the potential to generate significant adverse impacts absent ameliorative measures such as buffer distances, acoustic walls, acoustic and visual mounds, dust suppression, odour mitigation and the like. The limited prohibited uses in the 1(a3) zone indicate that the zone was intended to accommodate such uses, amongst others, provided that, in the particular circumstances, the use is consistent with the zone objectives and otherwise appropriate having regard to the matters set out in s 79C of the EPA Act.

48 For these reasons, I do not accept the Council's submission that the fact that the development requires significant ameliorative measures itself indicates development necessarily inconsistent with the 1(a3) zone. The 1(a3) zone permits development of a kind that will often require significant ameliorative measures. The adequacy, appropriateness and impacts of those measures, including in the context of the zone objectives, require consideration, however.

49 It is apparent from the evidence that the distance between the areas of the site previously used for the various activities (which extended into the proposed exclusion zone) was inadequate to mitigate the noise, vibration and dust impacts. Odour did not particularly feature in the oral evidence, but was mentioned in the written objections. The potential source of regular odours from the site was not apparent on our site inspection. Having regard to the current proposal, I do not accept that odour will be a likely material impact. The proposed development incorporates both physical and operational measures to address noise, dust and vibration impacts. Mr and Mrs Walker, based on Mr Godfrey's past performance, were concerned that the measures would not be implemented (particularly the operational measures) requiring constant monitoring by them and that the extension of the shed, the acoustic walls and large earth berm were visually unacceptable and inconsistent with the rural character of the zone and locality.

50 As the Council conceded, development consents are concerned with the use of land, not the identity of the user (see the references in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 at [34]). The application cannot be assessed on an assumption of future breach. The Council has available many avenues to enforce compliance with the conditions of development consents. Moreover, conditions have been suggested requiring auditing of the acoustical treatments and could readily be extended to other potential impacts. These facts do not mean that the nature and practicality of the ameliorative measures is irrelevant, however. Developments proposing unrealistic or impractical physical or operational requirements are inappropriate. The aims of the LEP and zone objectives are also relevant.

51 The aims of the LEP include reducing rural land use conflict by introducing appropriate planning controls, protecting areas of significant agricultural production, maintaining the rural natural landscape character of the local government area, protecting areas of ecological significance and providing rural residential living opportunities. The substance of the "appropriate planning controls" is to be found in the various zone objectives, development control tables and other provisions of the LEP.

52 I have identified the objectives of the 1(a3) zone above. Although Mr Brown's statement identified the site as suitable for a hobby farm or market garden, it would be inappropriate to ignore the fact that the Council did not raise a specific issue about the agricultural potential of the site and itself granted three relatively recent development consents incompatible with the uses identified by Mr Brown. Moreover, none of the immediately surrounding land appeared to be used for agricultural purposes. In this context, I am satisfied that the proposed development is consistent with zone objectives (a), (b), (c) and (e). The development will not undermine any agricultural potential of the site, having regard to the three development consents granted by the Council, the existing condition of the site and the fact that it does not involve subdivision or any fragmentation of the holding. Zone objective (d) (retain the scenic quality and overall character of the land) requires more detailed consideration, particularly given the acoustical treatment incorporated as part of the amended development proposal.

53 Given the range of development permissible in the 1(a3) zone (and the other rural zones where the same zone objective appears) I do not think that zone objective (d) can be construed as preventing alterations to the appearance of land. Indeed, it is difficult to identify development that would not alter the appearance of land. The zone objective must be construed and applied in context (including the context set by the uses permissible in the zone and the scenic quality and character of the particular site). Issues of fact and degree are involved. This site has cleared and uncleared areas and exhibits changes in level, appearance and scenic quality. For example, there are the fairly large existing buildings on the north and western boundaries, the cleared areas in the central part of the site, the scattered trees around that central area, the fall to the gully in the east and south with more dense vegetation in those areas. The overall character of the site is affected by the three development consents granted and implemented by the Council.

54 I am satisfied that the 2 metre acoustic wall on the western boundary between the entrance and the existing shed is a practical solution to noise impacts and will not have any inappropriate impact, visual or otherwise, on the site or other land. Similarly, the acoustic treatment of the existing shed is desirable and will significantly improve the acoustical amenity of the Walkers' property in particular. The extensions to that shed will introduce more built form on the western boundary, visible from the Walkers' home. The extensions (16 metres, compared to the existing shed of 24 metres) are not unreasonable in the overall context of the site and the locality. There is some setback between the shed and the boundary (within which some planting is proposed). The Walkers' home is also set back some distance from their boundary. I am satisfied that the 2 metre acoustic wall and the shed extensions will not materially affect the scenic quality or overall character of the site (or its surrounds).

55 The proposed 6 metre acoustical wall and earth berm (4 metres high with a 2 metre acoustical wall on top) raise more finely balanced considerations, as the berm and wall together are significant features. The proposed acoustic wall is to commence some 6 metres from the western boundary and extend diagonally along the berm to a point some 60 metres from the western boundary. These ameliorative measures are not simply placed along the western and southern boundaries of the site. They have been designed to respond appropriately to the context of the site and its adjoining rural residential neighbours through: - (i) the use of materials (that is, the short length of the 6 metre wall set well back from the western boundary and the combination thereafter of earth capable of being landscaped and wall), (ii) the generous setback from the western and southern boundaries of the earth berm, (iii) the diagonal alignment back into the site of the earth berm, and (iv) the proposed landscaping of the earth berm and exclusion zone. The design features identified mean that the earth berm will present as a largely natural feature dividing the site between operational and natural areas. By so doing it will provide acoustical and visual protection to adjoining properties and prevent activities being carried out within the exclusion area, allowing that area to be rehabilitated as proposed and providing significant amenity improvements to the adjoining properties. It will also screen the activities on the site and will provide a suitable landscaped outlook for the rural residential properties to the west. In these circumstances, I am satisfied that the earth berm and acoustic wall are consistent with the zone objective of retaining the scenic quality and overall character of the site (and its surrounds). 56 I do not consider any of the proposed operational measures to be unrealistic or impractical. Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 identified a number of questions relevant to the appropriateness of use of an operational management plan as part of the measures to mitigate the impacts of development. Those questions involved considering the consistency of the management plan with consent conditions, whether the management plan required people to act in an unlikely or unreasonable manner, the clarity of the requirements of the management plan to enable ready enforcement in the event of breach, whether the management plan was sufficiently effective to enable adequate operation even absent absolute compliance, effective communication of the management plan to employees and others engaged on site, effective complaint management procedures and procedures for the management plan to be updated and amended as required (including making those changes public).

57 I consider two of these questions (whether the management plan required people to act in an unlikely or unreasonable manner and whether the management plan was sufficiently effective to enable adequate operation even absent absolute compliance) particularly important in the present case. I am satisfied that the substantive requirements of the draft operational management plan are capable of being practically implemented. They are not peculiarly onerous and ought to be capable of being incorporated within the everyday operations of the site. I am also satisfied, on the basis of Mr Clarke's evidence, that the operational measures appropriately supplement physical measures that of themselves will provide adequate protection from unacceptable noise and vibration impacts in the ordinary course. That is, the proposed development does not rely solely on absolute compliance with operational requirements to achieve an appropriate level of amenity for its neighbours.

58 Despite these conclusions, I accept the Council's submissions that, insofar as practicable, all mitigating measures for this development (which is static development, unlike a mine or quarry or the like) should be contained in consent conditions rather than an operational management plan. I address this matter further below.

59 Although the application as supplemented included information relating to dust suppression (use of soil binding agents, use of sprinkler systems to wet down fine piles and covering fine piles), I consider Mr Brown's concerns about the inadequacy of that information, and the desirability of ensuring that all materials are placed in bins with dampening equipment, carry weight. In particular, there was no first hand information from a suitably qualified expert about the efficacy of soil binding or wetting down stockpiles (particularly unconfined stockpiles) as a dust suppression measure. Although the applicant indicated that fine materials could be covered, it was not clear to me from the evidence that this was practical for the unconfined stockpiles.

60 In circumstances where I accept that the storage of soils, sands and related materials on site is likely to cause dust nuisance to the rural residential properties to the west absent mitigating measures, I am not content to leave this matter to be addressed by conditions. In circumstances where I also anticipate that effective mitigating measures are likely to be available, I do not consider it reasonable to refuse the application outright on the ground of inadequate information with respect to dust suppression. I am willing to hear the parties further on this issue.

61 I am satisfied that the site is likely to be capable of accommodating appropriate internal traffic arrangements. As with much of the application, however, the available information about the proposed internal traffic arrangements is located in so many different sources (some in exhibit N, some in Mr Saxton's statement, some in Mr Haskew's statement, some in the draft operational management plan) that it is difficult to understand and assess that information. Further, Mr Saxton's conclusions have the quality of assertion rather than reasoned outcomes. Accordingly, I accept the Council's submission that the potential for interactions between large vehicles and passenger vehicles and pedestrians requires suitable resolution as part of the development application, rather than being left to conditions. Given the size of the site and the likelihood that it is capable of capable of accommodating appropriate internal traffic arrangements, I do not consider it reasonable to refuse the application on the ground of inadequate information with respect to internal traffic arrangements. I am willing to hear the parties further on this issue.

62 For the reasons set out above, I am satisfied that the issues raised by the Council and the concerns of the residents should not lead to refusal of the application. The application proposes uses permissible in the zone on a site where the Council granted three development consents for non-rural residential or agricultural uses between 1994 and 2000. The activities previously carried out on the site (whether in accordance with those consents or not - a question outside the scope of this appeal) incorporated no apparent physical or operational measures to mitigate the obvious potential for unacceptable impacts on the site's rural residential neighbours. Accordingly, the neighbours' concerns about entrenching such uses are easy to understand, but must be assessed in the context set by the proposed development.

63 The proposed development, in contrast, incorporates physical ameliorative measures that Mr Clarke has assessed as effective to provide appropriate levels of residential amenity. I am satisfied that the proposed development is consistent with the objectives of the 1(a3) zone and is generally capable of being carried out in a manner which meets the relevant provisions of DCP 36. Although issues remain about dust suppression and internal traffic arrangements, the Council did not identify other matters that it said should lead to refusal of the application. Insofar as the residents and Mr Brown did so (for example, ecological impacts, tree removal, bushfire threats and available water sources for fire fighting, toilet facilities, and external traffic impacts) I consider those matters either addressed by the evidence (including that of Mr Freeman) or capable of being appropriately regulated by conditions of consent.

64 I propose that the parties have the opportunity to address on the future conduct of the proceedings given my findings about the outstanding issues of dust suppression and internal traffic arrangements.

Conditions 65 Given the amendments to the application, the parties did not have a full opportunity to address on the draft conditions of consent. As noted, the Council creditably dealt with a large amount of new and amended information and prepared draft consent conditions within a short period. One primary disputed condition related to the hours of operation on Saturday. The applicant wished to commence general operations at 6.30am, and for one departure to be permitted between 6.00am and 6.30am from the departure zone. The Council supported Mr Clarke's recommendation for a commencing time of 7.00am for all operations associated with the earthmoving establishment on Saturdays other than one departure of an already loaded vehicle from the departure zone. I consider Mr Clarke's recommendation preferable in the circumstances. The site has rural residential neighbours - a general 7.00am commencing time on Saturdays (subject to one departure only) is reasonable irrespective of compliance with the sleep arousal criteria.

66 Otherwise, I consider that the applicant's deletion of the last part of deferred commencement condition (iii) is reasonable, but that the Council's approach to the other conditions in dispute (particularly surrender of the three existing development consents) is preferable. As I propose to hear the parties about the future course of the proceedings, it is also appropriate that I note the following matters (assuming, for this purpose only, that the outstanding issues are capable of being adequately addressed and consent granted to the application): (1) I think it appropriate that all physical aspects of the development, including the areas proposed to be the subject of the rehabilitation, weed eradication and landscaping (which includes the eastern boundary area as shown in Mr Freeman's documents) should be incorporated on a consolidated set of plans. These plans should include such matters as the Morse McVey requirements, the physical internal traffic arrangements, the location of dust suppression systems and the like. Presently, this information is scattered throughout many plans and reports.

(2) There needs to be an effective transition between the existing consents and the new consent. In particular, uses under the new consent ought not to commence until at least the main physical ameliorative measures have been provided. The existing consents need to be surrendered once the uses pursuant to any new consent are authorised.

(3) The construction of the earth berm (in particular), acoustical walls and the treatment of the sheds are themselves capable of having adverse impacts unless regulated. Any consent should regulate construction hours, operations and quick completion of these measures. Sediment and dust control, and rapid landscaping of the earth berm, are essential to maintaining the amenity of the neighbours. Consideration should be given to a condition requiring a specific construction management plan as part of the deferred commencement conditions - at least for the earth berm. Any consent should require certification of satisfactory completion of these measures, and the associated initial landscaping.

(4) The trees identified for removal should be located on plans to form part of any consent. Conditions should require the landscaping plan and the detailed weed eradication and vegetation rehabilitation plan to be generally consistent with the preliminary reports already lodged - particularly with respect to protection and rehabilitation of the exclusion zone and the eastern boundary area. Conditions requiring an ongoing maintenance program are also appropriate.

(5) The draft operational management plan must be consistent with all consent conditions and should be amended to incorporate all of Mr Clarke's operational recommendations.

(6) A condition should ensure that all cleaning of vehicles is carried out within the vehicle washbay and that the vehicle washbay is used only within the proposed operating hours.

(7) Having regard to Mr Clarke's evidence, consideration should be given to a condition requiring all plant, equipment and vehicles stored on site to be maintained in a proper and efficient condition.

(8) The vehicles, plant and equipment list should be based on general categories of vehcles with all maximum weights and overall numbers within each class specified, consistent with the basis of Mr Clarke's assessment as in the current list. Individual vehicle registrations should not form part of any consent condition.

67 I have concluded that the issues the Council raised and the concerns of the residents should not lead to refusal of the application, but it is appropriate that I hear the parties further on the issues of dust suppression, internal traffic arrangements and consent conditions generally. I propose to list the proceedings for directions in this regard.

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