Ryan & Anor v Jarret & Anor

Ryan & Anor v Jarret & Anor - [2006] NSWLEC 183 - NSWLEC 2006 case summary — Zoe

[10]

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.

[20]

(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.

[21]

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].

[24]

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.

[26]

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.

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Judgment (28 paragraphs)

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Cases Cited (3)