Momentum Architects Pty Limited v Hornsby Shire Council

8 Clause 4 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") provides that development described in Pt 1 of Sch 3 is declared to be designated development for the purposes of the EP&A Act. 9 Schedule 3 to the Regulation contains the following definition of designated development:- 29 Sewerage systems or works

(3) Sewerage systems or works that store sewage, sludge or effluent and:

(v) within 250 metres of a dwelling not associated with the development. 10 Part 1 of Sch 3 to the Environmental Planning and Assessment Regulation 1994 ("the 1994 Regulation") contained definitions of development declared to be designated development pursuant to cl 53C(1) of the 1994 Regulation in accordance with the regulation making power in s 158 of the EP&A Act as it then was. 11 The following preamble appeared:- Development for the undermentioned purposes or development of the undermentioned types is designated development: 12 The development application was not accompanied by an Environmental Impact Statement ("EIS") and, accordingly, if designated development is proposed the Court cannot proceed to hear the appeal. 13 It is not in dispute that the work will store sewerage. However, it will be temporary to facilitate the operation and a regulated outflow of sewerage. There is no component of treatment. The applicant concedes that if Hornsby Shire Council's ("the council") argument is correct, then the development involves designated development as defined. 14 However, the applicant submits that the sewerage proposal is not designated development because its principal purpose is to provide a regulated transfer of sewerage to the Sydney Water main sewer. Its purpose is not to store sewerage but to temporarily collect it for the purpose of regulating or attenuating the ultimate discharge. I do not agree. The purpose of the wet wall is to provide a storage chamber. The period of storage is not fixed and could vary according to the circumstances at any given time, including malfunction or break down of the pump. The applicant does not argue de minimus non curat lex, that is, the law takes no notice of very small things. The Court understands the argument as being that the chamber should be categorised in the same way as a sewer pipe, namely by being part of a transport system. The 1994 Regulation referred to "temporarily or permanently store sewerage". The Court rejects the applicant's submission that following omission of any reference to duration of storage the focus should be upon the primary purpose of the system rather that the function of an individual component of the system. The applicant's argument ignores the plain words of the definition in cl 29 which are unqualified in any way. The criteria relates to the function of the work and its location. 15 In Maxwell & Another v Hornsby Shire Council [2002] NSWLEC 92, unreported, Pain J decided that following commencement of the new Regulation the change in wording in relation to designated development in the EP&A Act and the removal of the preamble to Sch 3 is significant. She did not consider the case law which refers to the need to characterise the purpose or type of a development as binding, as it relates to a legislative context that no longer exists. She specifically distinguished the decision of the Court of Appeal in Penrith City Council v Waste Management Authority (1990) 71 LGERA 376, the decision of Pearlman J in Lyne v Moree Plains Shire Council (1999) 110 LGERA 120 and of Bignold J in Canyonleigh Environment Protection Society Inc. v Wingecarribee Shire Council (1997) 95 LGERA 294 as they are decisions based on previous legislative schemes. The critical change that Her Honour identifies in Maxwell is that the definition no longer includes reference to "purposes" or "types" mentioned in the Schedule. 16 The application of the test of characterisation stems from the decision of the Court of Appeal in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 151, particularly at 161 and has been applied consistently by the Court of Appeal in cases where it has been necessary to determine what is designated development (see Bob Blakemore Pty Ltd v Anson Bay Co (Australia) Pty Ltd [1990] NSWCA, unreported, CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 and Penrith City Council v Waste Management Authority). 17 Although in the latter case the Court recognised the references to types and purposes of development, the task was described as follows:- However, the schedule is not open ended. It is necessary in each case to measure the application as lodged with the various classes specified in Schedule 3. Because the task is one of classification the consideration of the development proposed against the various categories specified in the schedule will inescapably result in decisions which are partly impressionistic, upon which different minds may entertain genuine differences. … …Because the words of the statutory definition may relate to parts only of a development as proposed, it is necessary, in performing the task of characterisation to consider the "character and extent and other features of the activities" proposed to decide whether, properly classified for legal purposes, they fit into the definition against which they are being measured. This is what Glass JA suggested in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161. It is what Hope JA said explicitly in CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270. 18 I am firmly of the view that the legislative changes do not permit this Court to redetermine the approach to be taken for the purpose of ascertaining whether development falls within the category of designated development. The earlier decisions of the Court of Appeal and this Court recognise that the scheme of the EP&A Act emphasises the potential for environmental impact from designated development. Arguments accepted by Pain J, to the effect that there is no rationale for distinguishing between, for example, sewerage treatment plants that are an independent development and were, therefore, designated development and sewerage plants that fall within Sch 3 but would not require an EIS because they can be characterised as being for a subservient purpose to another development were equally available prior to the recent legislative changes and yet the courts have decided to embark on the process of characterisation. 19 I am, therefore, faced with following what I believe to be correct earlier and binding decisions of the Court of Appeal and this Court or the decision of Pain J in Maxwell. 20 I have a particular difficulty in identifying any change in the legislative scheme that would entitle me to distinguish the earlier decisions in the manner that Pain J has purported to do. 21 It is not strictly a problem of whether I should follow the decision of another single judge (Michael Reality Pty Ltd v Carr (1975) 2 NSWLR 812 at 820) but rather whether I should prefer the decision of other judges in this Court consistent with a line of authority established by the Court of Appeal. 22 Furthermore, I am not persuaded to change my view as a consequence of the careful analysis undertaken by Mr Tomasetti which shows that the legislation now expressly contemplates that more than one development can be the subject of a development application or that the specification for an EIS in s 71 of the EP&A Act consistently refers to "development to which the statement relates" as opposed to the development the subject of the development application. There was previously nothing to say that the one development application could not relate to separate developments one or more of which may be designated development. Section 71 does no more than recognise that the EIS is only required to address the impacts of designated development rather than the whole of the composite developments which incorporate or operate together with the designated development where the designated development is considered not to be subsumed by the other development. 23 In the circumstances, the Court is not satisfied that the development proposed by the development application is designated development. It should be characterised as a SEPP 5 development. The proposal for sewerage storage is not such that it should be regarded as separate development. It is subsumed as a matter of fact and degree in the overall development. 24 Mr Tomasetti relies on the decision of the High Court in Cooper Brooks (Wollongong) Pty Ltd v FCT (1980-1981) 147 CLR 297 at 304 to submit that the words of the EP&A Act and the Regulation should be given an ordinary and grammatical meaning even if it leads to a result that may seem inconvenient or unjust. The issue does not directly arise in the present context because as a matter of fact, I am not satisfied that the development proposed by the development application now should be characterised as one of the designated developments in Sch 3. 25 The Court's determination is no more inconsistent with the objectives of the EP&A Act set out in s 5 than the previous decisions of this Court and the Court of Appeal already referred to. 26 In the circumstances, as I have already concluded, an EIS is not required. Accordingly, the appeal can proceed on Monday. 27 The answer to the question raised by Issue No. 18 is no. Accordingly, no answer is required to the question raised by issue No. 19. 28 The exhibits may be returned.

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