37 Upon consideration of these various definitions, the Council contends that the term "industry" requires no more than that the particular development be an activity which involves work or labour but does not have to involve any manufacturing component. It contends that, provided the activity involves an "operation" of some kind and has a "business" component, the requirement for there to be an "industry" is satisfied.
38 The applicant contends that something more than work or labour to a commercial end is required in order to engage cl 19(1). It submits that some form of process is necessary which has an "industrial" characteristic. While such an approach may involve the substitution of one concept of indeterminate character with another, for reasons that I will explain, I prefer the approach of the applicant.
39 The immediate context which informs the meaning of "industry" or "industries" is the whole of the definition or description of "extractive industries" that appears in parenthesis in the chapeau to cl 19(1). A consideration of all these words suggests to me that, in order to meet the form of development being defined or described, one needs to identify four elements, some of which may be considered in the alternative. The first, as I have already recorded, is that the activity be an "industry". Its meaning or intent as part of the definition or description is then to be understood by reference to the remaining three elements, which must also be identified in the development being contemplated. Those remaining three elements are to be considered in two "strands". The "strand" first expressed is of an industry -
i. that obtains
ii. extractive materials
iii. by methods that include excavating, dredging, tunnelling or quarrying.
40 The second "strand" of industry, and that which is relevant for present purposes, is one that -
i. stores, stockpiles or processes
ii. extractive materials
iii. by methods that include washing, crushing, sawing or separating those materials.
As will be apparent, for each "strand" there is a method identified by which extractive materials are derived or treated. The stipulation of those methods is, so it seems to me, consistent with the need for some form of process directed to the "extractive material", which involves the intervention of machinery or equipment as a necessary element in the conduct of the activity. In short, it involves an "industrial process".
41 The Council contended that the qualifying "method" identified in the second "strand" of activities which engages the operation of cl 19(1) is only applicable to the processing of extractive material. It contends that one does not store or stockpile extractive materials by "washing, crushing, sawing or separating" those materials. On reflection, such an assertion is not self-evidently correct. It is not difficult to imagine that stored or stockpiled materials are put in place on a given site consequential upon a process of washing, crushing, sawing or separation.
42 The identification of the method by which the storing or stockpiling of extracted material is achieved as an element necessary to engage cl 19(1) serves several purposes. First, it identifies some of those activities which are often associated with the winning of extractive material from land. No doubt the addition of what I have called the second "strand" of activities as part of the definition of "extractive industries" is intended to overcome the type of factual problem considered by the Court of Appeal in Egan v Hawkesbury City Council (1993) 79 LGERA 321 where activities being undertaken in a quarry extended beyond the winning of extractive material. The present is really the converse of that factual situation whereby the definition or description in cl 19 is intended to capture all those activities ordinarily associated with a site upon which extractive materials are won and there processed in some fashion.
43 Secondly, and perhaps more significantly, the apparent intent of the draftsperson was to include those forms of dealing with extractive materials which had an industrial connotation. In turn, that proposition needs to be understood, having regard to the apparent legislative purpose in identifying designated development in Sch 3 to the Regulation. Observations as to that purpose were made by Tobias JA in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (supra) as follows (at [183]):
"When taken in the context of the objects of the EPA Act set forth in ss5(a)(vi) and 5(c) and in conjunction with provisions such as ss 79, 80(9) and 98 which single out designated development for particular attention, it becomes clearly enough that the requirement for an environmental impact statement to accompany a development application " in respect of " designated development was intended to secure for the public good the comprehensive protection of the environment from those forms of development which by their nature, have been declared by the legislature to be likely to significantly impact thereon."
44 Considered in this context, it is understandable that the draftsperson of the Regulation would be concerned to include in the definition of "extractive industries" those activities which by their nature are likely to have a significant impact upon the environment. The relatively benign activity of carting extractive material to a place where it is stored or stockpiled without further activity or process is not intrinsically likely to have the significant environmental impact to which Tobias JA referred. Conversely, the storing or stockpiling of such material by a process of "washing, crushing, sawing or separating" or by a process of a similar kind, does have the potential for serious impact. Thus, so it seems to me, the draftsperson was deliberate in qualifying storage or stockpiling by reference to the methods identified in the definitional provision of cl 19(1). None of those processes are intended by the development which is the subject of the DA.
45 The broader context of Sch 3 to the Regulation further speaks against the contention of the Council that an activity involving work or labour is all that is required in order to engage the definitional provision of cl 19(1) when considering the stockpiling or storing of extractive material. The word "industries" is used throughout Sch 3 to describe particular activities to which the Schedule applies. Some of those are "agricultural produce industries" (cl 1); "bitumen pre-mix and hot-mix industries" (cl 5); "ceramic and glass industries" (cl 8) and "livestock processing industries" (cl 22). In each of those examples, the activity to which the clause relates is defined in the same way as is the case for "extractive industries", that is, after the particular industry is stated it is defined or described by words in parentheses commencing with the words "being industries …". In each case the definitional provision identifies that the activity involves a process which, in ordinary parlance, would be considered as having an industrial character. Importantly, the process would, in each case, intrinsically have a characteristic which would be likely to have a significant impact upon the environment.
46 By way of contrast, there are various activities identified in Sch 3 which have different descriptors. Some are described as "works" (cll 7, 14, 15, 16, 20, 24, 27, 34). By way of further contradistinction, cl 9 identifies "chemical industries or works".
47 A further distinction that the draftsperson has drawn when identifying activities that are the subject of Sch 3 is by the use of the word "facilities". These include "aircraft facilities" (cl 2); "chemical storage facilities" (cl 10); "marinas or other related land and water shoreline facilities" (cl 23) and "shipping facilities" (cl 30).
48 It must be assumed that when these various descriptors of activities were included in Sch 3, it was intended that a distinction be drawn among them. While the words "works" and "facilities" are not defined, it is clear from the various descriptions used in Sch 3 that both are apt to describe activities in a way that comprehend activities more generally than does the word "industries". A "facility" for the storage or stockpiling of extractive material or "works" involving the storing and stockpiling of extractive material would more readily accommodate that which the applicant's DA intends than does its description as an "industry" that undertakes the process in the manner described in the chapeau to cl 19(1).
49 The meaning of "industry" as the singular of the noun "industries", in the context of cl 19(1), was the subject of consideration by Pain J in Miltonbrook Managements Pty Ltd v Shellharbour City Council [2004] NSWLEC 185; (2004) 134 LGERA 1. There, the development in contemplation involved the subdivision of land with related site works which included a stormwater management system. That system required the creation of a number of ponds on the land being subdivided, those ponds being created by excavation and the material so excavated being placed elsewhere on the land as fill. More than 2 hectares of that land was required to receive the fill material from those excavations. Because more than 2 hectares of land was involved in depositing the excavated material, the council in that case argued that cl 19(1) was engaged (cf. cl 19(1)(b)) and thus the development was one in respect of designated development.
50 The council argued, as does the Council in this case, that the word "industry" should, in the context of cl 19(1), be afforded a broad meaning so that it required no more than the presence of "systematic work or labour" in order that the clause be engaged. Her Honour rejected that approach. She concluded her consideration of cl 19(1) in the following way (at [32]):
"I agree with the Applicant that industry should be interpreted as it would generally be in a town planning context so that it refers to commercial activities carried on through industrial processes."
51 Her Honour reached the conclusion so expressed by a process of reasoning that differs a little from that which I have taken. Nonetheless, I respectfully adopt her conclusion in as much as the word "industry" should be taken to identify "commercial activities carried on through industrial processes" when used in the plural in cl 19 (1).
Does the proposed development involve a commercial activity carried on through industrial processes?
52 The Council contends that even if its submission that storing or stockpiling extractive material in a way that engages paragraphs (a), (b) or (c) is, in principle, not sufficient to fall within the chapeau to cl 19(1), the development identified in the DA and its supporting material, does involve an industrial process. Apart from identifying the volume of material involved and the area of the Site which it will occupy when stockpiled, it makes reference to those aspects of the proposed activity that I have identified in [16]. It also refers to the proposal to employ a project manager and the need for ongoing management of the stockpiles in order to prevent dust and erosion. When all these matters are taken into account, it submits that implementation of the development proposed will involve the requisite "industrial processes."
53 It cannot be questioned that the development proposed has a commercial component. As noted in [17], the preload fill intended to be stockpiled is being purchased at a "commercial price" to the intent that it may ultimately serve the interests of the owner of the Site by providing an appropriate base upon which to develop it for a commercial purpose. However, the latter purpose is not one for which consent is sought in the present DA and is one that may never be realised.
54 Importantly, I do not consider that the development proposed in the DA is one involving the "industrial process" intended by cl 19(1). First, for reasons already discussed, it does not involve the process or method of storage or stockpiling that I have earlier discussed.
55 Second, the "industrial process" contemplated by cl 19 seems to me to require more than the carrying out of preparatory works and the maintenance of static stockpiles. An industrial process carries with it the concept of some continuity in process rather than the one-off deposition of material at a nominated location on the Site and which does not involve any form of processing of the material. It will involve concentrated and labour intensive activities over a relatively short period of time in order to move the soil and rock from the road to the Site. As the applicant submitted, those works that are involved, apart from the cartage of soil and rock, are essentially civil engineering works in preparing the Site to receive the material rather than some ongoing process of an industrial character.
56 If reference is made to the dictionary definitions which I have earlier quoted, the stockpiling on the Site of preload soil and rock is not being undertaken in the course of a particular branch of trade or manufacture nor is it being undertaken as part of a large-scale business activity.
Ancillary development?
57 In light of my determination that the development proposed in the DA is not the storage or stockpiling of extractive materials as part of an industry, it is strictly unnecessary for me to determine the applicant's alternate argument that its development is, in any event, ancillary to the Ballina Bypass road construction project and thus the provisions of cl 37A of Sch 3 are engaged. However, lest I be wrong in my primary determination, it is appropriate that I briefly address the applicant's submission.
58 I have set out the relevant provisions of cl 37A at [24]. As will be apparent, there are two aspects of the proposed development that must both exist before that clause is engaged. They require that the development be ancillary to another development and that the proposed development not be carried out independently of that other development. I do not find either of these elements present in the applicant's proposed development and I would reject its submission that the clause is engaged.
59 The approval of the Minister given to the Ballina Bypass road construction project did not identify, let alone consider, the ultimate destination of surplus material from the road project. Acquisition, at a commercial price, of soil and rock from the Bypass project and stockpiling that material upon the Site in order to serve the interests of the owner of the Site, rather than the entity responsible for construction of the road, cannot, by application of ordinary principles, be regarded as ancillary to road construction. The development which is the subject of the DA serves an independent purpose which does not subserve the road construction purpose (Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161).
60 Even if I be wrong in that conclusion, the second component of cl 37A is not met. Clearly, the stockpiling of spoil from the road works is development being carried out independently of the Bypass project as a discrete commercial venture. The fact that the "extractive material" being stockpiled is sourced from the adjacent road works is irrelevant to this determination.
Conclusion
61 For the reasons that I have indicated, the DA is not in respect of designated development. The development for which consent is sought does not involve the necessary industrial process such as to engage cl 19(1) of Sch 3 to the Regulation.
62 Of course, this does not mean that the Council is without the legal capacity to assess the impact that the development contemplated by the DA will have. As with any other development application for permissible development, the provisions of s 79C of the EPA Act will need to be applied to the consideration of the DA before determining whether to grant or refuse consent pursuant to s 80.
63 In the event that I am wrong in my determination that cl 19(1) of Sch 3 is not engaged, for reasons indicated, the development proposed by the applicant is not ancillary to the Ballina Bypass road construction project and thus cl 37A of Sch 3 is not engaged.
Orders
64 In light of these reasons, I make the following orders: