Ryan & Anor v Jarret & Anor

Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; Council of the City of Parramatta v Brickworks Limited (1971-1972) 128 CLR 1; CASES CITED: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; Hollis v Shellharbour City Council [2002] NSWLEC 83 ; Penrith City Council v Waste Management Authority & Anor (1990) 71 LGERA 376 ; Warren v Coombes (1979) 142 CLR 531

APPLICANTS Mr D Wilson SOLICITOR LEGAL REPRESENTATIVES: Mr J Ryan RESPONDENTS Ms A Pearman SOLICITORS Kearns & Garside with RMB Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40991 of 2005 Desmond Michael Ryan and Pamela Mae Ryan v Warren Allen Jarrett and Maureen Elizabeth Jarrett

JUDGMENT 1 Her Honour: The Applicants own a dairy farming property at Coolangatta. The Respondents are a neighbouring dairy farming property. The Applicants are the owners of 961 Bolong Road, Coolangatta, being Lot 4 in DP836225 in the Local Government Area of Shoalhaven, Parish of Coolangatta, County of Camden having an area of about 30.9ha ("the Applicants' land"). The Respondents are the owners of 1065 Bolong Road, Coolangatta, being Lots 25 and 26 in DP1045418, having an area of about 65.52ha and 56.29ha respectively ("the Respondents' land"). The Respondents' land is located to the north and east of the Applicants' land.

2 The Applicants are seeking the following declarations and orders in their Class 4 application. (a) A declaration that the Respondents are carrying out development which requires development consent on the land at 995 Bolong Road, Coolangatta, being Lots 25 and 26 in DP1045418, without development consent: (i) the bringing onto the Respondents' land by truck recovered paper solids ("RPS") and/or waste paper sludge and/or waste produce derived from the process of pulping timber product; (ii) the placement of and/or treatment of materials on the Respondents' land; (iii) the spreading on the Respondents' land of that material. (b) An order that the Respondents and each of them be restrained from carrying out or causing to be carried out that development on Lots 25 and 26 without development consent being obtained. Agreed facts 3 The parties prepared a statement of agreed facts from which the following is extracted. On 13 March 1996, the Shoalhaven City Council granted development consent 96/3007 for the placement of top dressing on salt affected land on Lot 2 DP528430. Lot 26 of the Respondents' land was created from that lot. The development consent expired on 13 March 2001. 4 The composition of the RPS and how it is obtained is generally described on the Facts Sheet from Australian Paper Mills ("APM") which produces the RPS used on the Respondents' land at its Shoalhaven paper mill as follows: Production Processes The Mill processes pulp through machines which press, dry, size and finally wind the paper onto rods. The paper is then wound onto reels or cut into sheets for sale to our customers. Preparation of the waste paper and wood pulp and the operation of the paper machines use large quantities of water. Effluent Treatment Wastewaters from the pulp preparation and the paper machines are treated in an effluent treatment plant. This treatment process recovers the paper solids from the wastewater and produces a liquid stream which is suitable for discharge into the Shoalhaven River.

The Mill recovers approximately 10,000 tonnes per year (dry) of solids from the wastewater stream. This material is termed "Recovered Paper Solids" or RPS. Routine monitoring and testing of the RPS is undertaken to identify the composition of the material.

RPS Classification When assessed in accordance with the requirements of the NSW EPA's Environmental Guidelines: Use and Disposal of Biosolid Products 1997 the material is classified as GRADE A Biosolid . This classification means that the material is safe and non-toxic for beneficial utilisation. …

Soil Conditioner The remainder of the RPS is utilised by local landholders as a soil conditioner. RPS can provide the following benefits to soils: - neutralising acidic soils - providing small amounts of slow release nutrients - providing micro-nutrients and trace elements - providing organic matter which can improve soil structure and water retention.

… these applications have been undertaken successfully for over 10 years. 5 Between 1993 and 1998, the Respondents placed RPS on their land. The tonnage is unknown. Between 1 March 1998 and 31 August 2005 the records of APM disclose that approximately 73,491 tonnes of wet RPS were delivered to the Respondent's land. 6 No money is paid by the Respondents for the RPS used on their land or for cartage to their land. APM does not pay the Respondents to take delivery of RPS on their land.

7 Trucks deliver the RPS to the Respondents' land and discharge their loads by depositing them in piles in designated areas. The wet RPS are allowed to dry. The Respondents then spread those RPS on their land by excavator or tractor loader. The RPS are applied as a form of top dressing by the Respondents. After time, they break down and decompose. 8 According to their counsel's written submissions, the Applicants are not alleging any environmental harm results from the Respondents spreading RPS on their land. I also note the Respondents' evidence that no RPS have been spread on their land since September 2005.

LEP 9 Under the Shoalhaven LEP 1985, the Respondents' land is zoned Rural 1(a) and Rural 1(g) and agriculture can be carried out without development consent. Agriculture is defined in cl 6 (1) of the LEP, as: …the use of land for cultivation, horticulture or animal husbandry but does not include a use of land elsewhere specifically defined in this clause. Evidence 10 Evidence relied on included the affidavit of Desmond Michael Ryan, sworn 17 November 2005, and three affidavits of Warren Allan Jarrett, one of the Respondents, sworn 30 March 2006, 23 March 2006 and 22 February 2006.

Relevant legislation 11 The Applicants' case is in part that the spreading of the RPS on the Respondents' land is designated development under cl 32 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation). This states: ( 1) Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and:

(i) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or (ii) in an area of high watertable, highly permeable soils, acid sulphate, sodic or saline soils, or (iii) within a drinking water catchment, or (iv) within a catchment of an estuary where the entrance to the sea is intermittently open, or (v) on a floodplain, or (vi) within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development and, in the opinion of the consent authority, having regard to topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood by reason of noise, visual impacts, air pollution (including odour, smoke, fumes or dust), vermin or traffic. (2) This clause does not apply to:

(a) development comprising or involving any use of sludge or effluent if:

(i) the dominant purpose is not waste disposal, and (ii) the development is carried out in a location other than one listed in subclause (1) (d), above, or … 12 "Waste" is defined in Cl 38 of Pt 4 Sch 3 of the EP&A Regulation as follows: waste includes any matter or thing whether solid, gaseous or liquid or a combination of any solids, gases or liquids that is discarded or is refuse from processes or uses (such as domestic, medical, industrial, mining, agricultural or commercial processes or uses). A substance is not precluded from being waste for the purposes of this Schedule merely because it can be reprocessed, re-used or recycled or because it is sold or intended for sale. Applicants' submissions 13 The Applicants argued that: (a) bringing the RPS onto the Respondents' land is a separate and independent use requiring development consent under the Environmental Planning and Assessment Act 1979 ("the EP&A Act") (whether or not it is designated development). This is the case even if the use is ancillary to the "agriculture" use: see Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 . (b) even if not an independent or separate use nevertheless the spreading of RPS on the Respondents' land is properly characterised as designated development under cl 32(2) of Sch 3 to the Regulations. 14 In Sch 3 to the EP&A Regulations, cl 32 sets out certain activities which are designated development. The Applicants submitted there is no doubt that RPS are waste. In order to determine whether the activity falls within cl 32 the activities themselves should be analysed, rather than asking the question up front of whether the activity is a waste facility or works. Spreading material is a work which disposes of waste. The process therefore falls within cl 32(1) in its opening words, and cl 32(1)(d)(ii) must apply. It is irrelevant whether the principle use of the land is agriculture, or whether the application of RPS is ancillary to that use, because cl 32(1) obviates the need for that inquiry to be made if it does apply. The Court can find as a matter of fact that the dominant purpose of the use of this land is agriculture, and the activity of the disposal of waste is ancillary to it, but the activity of applying the RPS will still be caught by cl 32 and be designated development. 15 Clause 32(2) contains exemptions to cl 32(1), which are made by reference to the purpose and location of development.

16 Clause 32(2) cannot operate to assist the Respondents because even if the dominant purpose is not waste disposal (cl 32(2)(a)(i)), cl 32(2)(a)(ii) cannot apply because the location of the RPS (which is effluent) is carried out on land located in cl 32(1)(d). 17 Alternatively the Applicants argued that the placement of the RPS was an independent use of the land because it was the preparation of the land for agricultural use, that is, the preparation of acid sulphate soils to grow crops rather than actual use for agriculture. Further the scale of the activity with approx 73500 tonnes spread between 1993 and 2005 suggests the activity should be characterised as an independent use even if ancillary to the agricultural use. It therefore requires development consent. Respondent's submissions 18 RPS is not waste as defined in cl 38 of Pt 4 of Sch 3. The placement and spreading of the RPS on the Respondent's land is not designated development and cl 32 of Sch 3 does not apply. "Works" in the opening words of cl 32(1) must refer to a place in which activity is carried out: see Council of the City of Parramatta v Brickworks Limited (1971-1972) 128 CLR 1. 19 The application of RPS to the Respondent's land is not a separate or independent use of the land but is ancillary to the use of the land for agriculture. Spreading of RPS is for pasture improvement purposes and is clearly ancillary to the primary use of the land for agriculture. It does not therefore require development consent. Finding 20 In Hollis v Shellharbour City Council [2002] NSWLEC 83, another case where I had to determine whether a particular development was designated development, it was first necessary that I characterise the nature of the development to determine if it did fall within Sch 3. In that case the development application was for a large subdivision and extensive stormwater and drainage management systems. The parties agreed that the process of characterisation was necessary but disagreed on what that characterisation was. If I adopt the same approach here I should first determine whether the spreading of RPS in this case is an independent use of land. Is the activity of applying RPS an independent use of land? 21 The definition of agriculture is set out in the 1985 LEP, at 9 above. The issue of characterisation of an activity to determine if it is an independent use has been considered in numerous cases, many of which I reviewed in my decision in Hollis at [27] - [33].

22 An oft-cited decision of how the task of characterisation of the development should be considered is Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157. At 161 Glass JA said: It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used…. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. 23 Another case to consider is Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404. An existing use rights case, the issue was whether soil and sand extraction was an independent or ancillary use to the use of the land as a riding school. In the Court of Appeal Meagher JA (Samuels AP and Clarke JA agreeing) found that the two uses were independent uses. The use of extraction could not be said to be ancillary to the use of the land as a riding school. The mere fact: that in 1976 some of the extraction was motivated by, and angled towards, the improvement of the riding school does not mean that it was not of itself an independent use… Notwithstanding the principles laid down in Foodbarn , it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. (at 409) .

24 Penrith City Council v Waste Management Authority & Anor (1990) 71 LGERA 376 involved a development application for the establishment of a regional waste depot which would involve excavation, depositing and compacting of material into large pits. There was no environmental impact statement (EIS) accompanying the development application and it was argued on appeal that this was designated development and therefore required an EIS. The Court of Appeal unanimously held that the proposal was for designated developed and an EIS was required. In obiter dicta, the Court commented on the characterisation of land as designated development and stated at 384 that: In part, the response to the task of characterisation will involve a judgment not always easily susceptible to full rationalisation. This is because the task involves questions of fact and degree…Because minds may sometimes differ, it will usually be the case that an appellate court will give full weight to the impression reached by the primary judge and the classification which he or she has thought appropriate: see Warren v Coombes (1979) 142 CLR 531 at 547. 25 The Applicants emphasised that a particular issue which underpinned their argument was that this activity of applying RPS involved the treatment of acid sulphate soils. Their counsel submitted that while that treatment was occurring no agricultural use could take place. On another view this was simply pasture improvement activity which happened to take place on land with particular soil types. Spreading of material to improve pasture is clearly an activity which comes within the practice of agriculture. It is clearly ancillary to that agricultural use.

26 Was the spreading of this material so extensive that it has the character of an independent use? As emphasised in Penrith City Council the answer to that question involves questions of fact and degree which can only be considered in the particular circumstances of the case. While a large volume of material has been spread on the Respondents' land over several years the affidavit of Mr Jarrett sworn 23 March 2006 states that the material substantially reduces in size as it dries out to about half its original size and weight. After the RPS has been spread on the ground the Applicants plant grasses in the soil to use as pasture. It is not filling activity and does not change the level of the land. I consider the activity is ancillary to the agricultural use of the Respondents' land and is not an independent use of the land. The facts of this case are unlike those in O'Donnell and Penrith City Council where the use of land in question was found to be an independent use. 27 There is no basis on which the spreading of RPS can be considered a separate use from that of agriculture for the purpose of determining if it is designated development or as development for which development consent is otherwise required under the EP&A Act. Does cl 32 Sch 3 apply? 28 Although it is not necessary that I resolve the issue of whether cl 32 applies because of my previous finding, I will consider whether the spreading of RPS could fall within Sch 3 as I heard argument on this issue. Waste is broadly defined under Sch 3. The Respondents argued that RPS is not waste within the definition in Pt 4 of the schedule because it was not "discarded" or "refuse" material, meaning unwanted material, which results from a process. The definition of waste is broad and includes, by virtue of the second sentence in the definition in Pt 4, any material which results from a process which can itself be reused. Given the description of RPS in the fact sheet supplied by APM it appears that RPS does fit within the definition of a waste as it is material resulting from an industrial process which also has a further use.

29 The main issue to resolve in relation to the application of cl 32 is whether the activity of placing and spreading, and sometimes stockpiling, the RPS is waste management "works" and therefore falls within the opening words of cl 32. The Applicants' case is that "works" and "work" are synonymous so that if an activity involves disposing of waste that is "work" and is caught by the opening words of cl 32. I agree however with the Respondents arguments that the words "works" and "work" are not synonymous and the opening words of cl 32 are intended to be read as referring to waste management facilities or [waste management] works. There is no definition of "works" in the EP&A Act or the EP&A Regulation. The Macquarie Dictionary (Revised Third Edition) definition of "works" includes: Noun … plural often construed as singular…a place or establishment for carrying on of some form of labour or industry: iron works…

30 It is clear from looking at other sections of Sch 3 of the EP&A Regulation that works is intended to mean a place or establishment where activity is conducted rather than referring to work as a process or activity taking place on land generally. Clause 7 of Sch 3 of the EP&A Regulation refers to "cement works". Clause 9 refers to "chemical industries and works". Clause 12 refers to "coal works". Clause 13 refers to "composting facilities or works". Clause 14 refers to "concrete works". Clause 20 refers to "limestone mines and works". Clause 29 refers to "sewerage systems and works". As is evident therefore, references in the EP&A Regulation to "works" generally imply activities (generally industrial) being carried out at a place or establishment. The opening words of s 32(1)(d) are not intended to apply to the activity or "work" of spreading RPS across the Respondents' land. 31 The decision of Walsh J in Council of the City of Parramatta v Brickworks Limited (1971-1972) 128 CLR 1 was relied on by the Respondents to support their argument on the meaning of "works" and that this word is to be distinguished from "work". That case had to consider cl 33 of an ordinance which referred to "existing work". The Respondents relied on a passage of Walsh J at 5 where he considers whether "work" can include a structure and holds that it can in the particular context before him. The Respondents were particularly relying on another part of the judgment at 5 where his Honour refers to "works" used as a noun "to describe an aggregation such as may be found in a steelworks or in a brickworks". 32 Brickworks demonstrates that the analysis of "work" and "works" depends on the particular instruments and circumstances in my view. The findings in Brickworks are not directly applicable here, and reflect the particular circumstance dealt with by the High Court. 33 As I have found that cl 32(1) does not apply there can be no basis for the application of cl 32(2) which provides a means whereby the application of sludge and effluent is not caught by cl 32(1) in certain circumstances. I do not need to analyse that section any further. 34 While the Respondents applied for and obtained Development Consent No 96/3007, which expired in 2001, that development consent is now argued by the Respondents' counsel to have been obtained in error. It would appear from a letter from the Council to the Respondents dated 20 December 1995 attached to the Statement of Agreed Facts that the Council was concerned that filling activity was taking place on the Respondents' land and therefore considered that development consent was necessary. The evidence before me does not suggest that the application of RPS is filling of land. I do not therefore infer that the grant of that development consent is suggestive that development consent is still required consistent with my finding at 27. 35 The Applicants are unsuccessful in their Class 4 application and I consider this should be dismissed. The parties indicated that they wished to make submissions on costs and I will reserve my decision on that question.

Orders 36 The Court makes the following orders: 1. The Applicants' Class 4 application is dismissed. 2. The question of costs is reserved.

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