Shah Friends Pty Ltd v Cumberland Council

The site

1. The site is zoned B6 Enterprise Corridor pursuant to the Cumberland Local Environmental Plan 2021 (the Cumberland LEP).
2. The Cumberland LEP came into force on 5 November 2021. Land use planning for the site had been regulated, prior to that date, by various planning instruments under the administration of the former Auburn Council. Auburn Council had been amalgamated to form part of Cumberland Council in 2016. Nothing concerning the earlier Auburn Council planning documents requires to be considered in any detail in these proceedings. It is, however, also appropriate to note that the past planning history of the site was addressed by the Commissioner at, relevantly, [13] to [26] of her decision, in the following terms: The current planning controls 13 The site is zoned B6 Enterprise Corridor pursuant to the Cumberland Local Environmental Plan 2021 (CLEP), which commenced on 5 November 2021. 14 Waste or resource management facilities are a nominated prohibited use in the B6 Enterprise Corridor zone, pursuant to the CLEP. Similarly, "industries" are a nominated prohibited use, other than light industries. As such, if a foundry is considered an "industry", it is prohibited on the site. An "industry" is defined in the CLEP as: industry means any of the following - (a) general industry, (b) heavy industry, (c) light industry, but does not include - (d) rural industry, or (e) extractive industry, or (f) mining. 15 "General industry" means "a building or place (other than a heavy industry or light industry) that is used to carry out an industrial activity", and industrial activity is defined in the CLEP as follows: industrial activity means the manufacturing, production, assembling, altering, formulating, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, transforming, processing, recycling, adapting or servicing of, or the research and development of, any goods, substances, food, products or articles for commercial purposes, and includes any storage or transportation associated with any such activity. 16 The definition of waste or resource management facilities includes a "waste or resource transfer station". The definition is found in the Standard Instrument ‑ Principal Local Environmental Plan, and replicated in the CLEP as follows: waste or resource management facility means any of the following - (a) a resource recovery facility, (b) a waste disposal facility, (c) a waste or resource transfer station, (d) a building or place that is a combination of any of the things referred to in paragraphs (a)-(c). 17 The definition of a waste or resource transfer station is similarly found in the CLEP as follows: waste or resource transfer station means a building or place used for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport. 18 Notwithstanding that waste or resource management facilities are a nominated prohibited use in the zone, a waste or resource transfer station is nonetheless permitted with development consent in the zone pursuant to cl 2.153(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), which commenced on 1 March 2022 and provides: (2) Development for the purposes of a waste or resource transfer station may be carried out by any person with consent on - (a) land in a prescribed zone, or (b) land in any of the following land use zones or equivalent land use zones - … (ii) B6 Enterprise Corridor, … 19 Regardless of the current controls found in a planning instrument, s 4.70 of the EPA Act preserves a development consent. It provides: 4.70 Saving of effect of existing consents (cf previous s 109B) (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section - (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 4.66 or 4.68. (3) This section is taken to have commenced on the commencement of this Act. The historic planning controls 20 The site was initially zoned "living area" pursuant to the County of Cumberland Planning Scheme Ordinance 1951 (CPSO), which commenced by proclamation in the Government Gazette in 1951. "Generating works; warehouses; bulk stores; industries other than local light industries; mines; institutions" were all uses that were prohibited in the zone. "Local light industries" were permissible with development consent in the zone. 21 On 18 September 1970, the Auburn Planning Scheme Ordinance 1970 (APSO) commenced. In accordance with the APSO, the site was zoned 4(b) Light Industrial, and industries including metal foundry were prohibited in the 4(b) zone. 22 However, adjacent to the zone in which the site was located was the 4(a) General Industrial zone, in which metal founding was permissible with development consent. 23 The Auburn Local Environmental Plan 2000 (ALEP 2000) commenced on 27 October 2000, in which the site was zoned 4(c) Industrial Enterprise. "Industries" were permissible with consent in the zone. 24 The Auburn Local Environmental Plan 2010 (ALEP 2010) commenced on 29 October 2010, and the site was zoned B6 Enterprise Corridor. "Industries" other than "light industries" became prohibited in the zone, which is consistent with the CLEP. The definition of "industry" in the ALEP 2010 was identical to that currently contained in the CLEP. 25 Prior to the commencement of the SEPP TI on 1 March 2022, the equivalent provision permitting a waste or resource transfer station with development consent in the B6 Enterprise Corridor zone was found in cl 121(2) of the former State Environmental Planning Policy (Infrastructure) 2007 (SEPP (Infrastructure)), which commenced on 21 December 2007. 26 As such, although there has been a change in the applicable planning instruments, from the time that the land was zoned B6 Enterprise Corridor on 29 October 2010, the use of the site for the purpose of a waste or resource transfer station was permissible with development consent, and the use of the site for "industry" was prohibited (other than "light industry").
3. This planning history provides an understanding of the planning framework within which the 1979 development consent was granted (a consent which requires later consideration).
4. The Commissioner also set out, from [27] to [35], relevant information concerning historical uses of the site. There is no dispute between the parties about the facts set out in this history. These paragraphs are in the following terms: The history of approvals for the site 27 A foundry was established on the site in around 1936, prior to the commencement of the CPSO. On the commencement of the CPSO, cl 32 operated to permit the continued use of a place for an existing use. 28 On 8 December 1954, the Council of the Municipality of Auburn approved building application 559/54 for additions to a factory at the site. In July 1960 it approved building application 694/64 for alterations and additions for "general engineering purposes". Following this, on 14 July 1964, the Council of the Municipality of Auburn granted building permit 459/64 to permit buildings for the purpose of industrial development to be erected on the site. During the period of each of these approvals, the site was zoned 'living area' under the CPSO. 29 Following the commencement of the APSO, the development application for the 1979 development consent was lodged on 27 July 1979. The description of the proposed development was "metal manufacturing, foundry, general engineering and metal pressing". It was granted by the Council of the Municipality of Auburn on 6 September 1979, notwithstanding that industries including metal foundry were prohibited in the 4(b) zone in which the site was located (although it may have been permissible as an existing use). Nevertheless, the 1979 development consent has never been challenged and must be taken to be valid unless and until declared otherwise by the Court (see F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306). 30 On 28 March 1980, the Council of the Municipality of Auburn granted building permit 104/80 for the construction of a new factory building addition on the site. Condition 27 of the permit references the 1979 development consent but there is no indication that the use of the premises changed from a foundry. The 1979 development consent 31 The development application for the 1979 development consent described the use of the premises on 21 November 1966 as "as per part 5 above, the foundry was established in 1936" and that the use of the premises on 26 July 1979 was "metal manufacturing, foundry, general engineering and metal pressing". The development application described the machinery installed as "lathes, metal planes, milling, grinding and general engineering machine" and that the machinery to be installed would be "replacing old machines with new ones plus 20 power presses and 2 metal guillotines and new induction melting machines". 32 The development application was accompanied by plans that set out the layout for the site, including areas marked as "existing factory - machine shop", "existing foundry", "proposed new foundry area", and "proposed new pressing shop". There is also a weighbridge shown on the driveway that runs through the site, as well as two areas for car parking. 33 Condition (d) of the 1979 development consent required that the layout of the premises and the size of the proposed buildings and works shall be in accordance with the plan submitted and marked as drawings Job 79/130 1 to 4 and shall form part of the permit. 34 The parties agree that, by the grant of the 1979 development consent, the use that was permitted by that consent is "metal manufacturing, foundry, general engineering and metal pressing". 35 The word "foundry" is not defined in any of the planning instruments. The expert town planner engaged by Shah, Mr Philip Bull, defines foundry as "a place where metal castings are produced", based on the New Collins Dictionary. This definition is not disputed by the Council.
5. The Company is a tenant on the site, a tenancy which is confined to only portion of the site. Other businesses also have tenancies over different portions of the site. The operation of a business (Sydney Copper Scraps) carried out at one of the other tenancies also arose for consideration during the Class 1 appeal before the Commissioner.

The Summons commencing the appeal

1. The Summons commencing this appeal sought the following orders: 1 The appeal pursuant to s 56A of the Land and Environment Court Act 1979 be allowed. 2 Order number 2 of the court below be set aside. 3 The development control order issued by Cumberland Council on 22 December 2021 pursuant to s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) in terms of a stop use order, Order Number 1 in the table to Pt 1 of Sch 5 of the Act, is declared void and revoked. 4 The Respondent in relation to this Summons is to pay the Appellant's costs of this appeal.
2. The grounds of appeal and the particulars pleaded in support of them were set out in the Summons in the following terms: 1 The Commissioner erred on a decision on a question of law by failing to properly construe and apply the terms of the 1979 development consent to the immunity for the use of the Premises to which the appellant was and is entitled to under section 4.70 of the Environmental Planning and Assessment Act 1979 (NSW). PARTICULARS a. The finding at [77] that "In granting the 1979 development consent, the use authorised by the consent is consistent with the description of the proposed development found in the development application, which is "metal manufacturing, foundry, general engineering and metal pressing"" is erroneously inconsistent with the finding in that same paragraph that "I consider that the purpose of that use is a foundry." b. The finding at [77] that "I consider that the purpose of [the use authorised by the 1979 development consent] is a foundry." erroneously fails to apply the test at [75] that the purpose is "identified as the end for which the premises were being used"" by failing to find that the end for which the premises were being used was for the sale of ferrous and non‑ferrous metal or for ends including those ends. c. The erroneous finding that at [82] the current activities on the Premises are not authorised by the 1979 development consent. d. The erroneous finding that at [84] "it matters not that some of the activities approved by the 1979 development consent overlap with the current activities on the Premises". e. The erroneous finding at [84] that "[w]hat is relevant is that the purpose of the use approved by the 1979 development consent is not the purpose of the use currently undertaken on the Premises." f. The erroneous finding at [84] that "the current activities on the Premises are not authorised by the 1979 development consent, as they are not for the purpose of the use authorised by that consent" g. The erroneous finding at [84] that "[t]he current activities are ... carried out without development consent." h. The erroneous finding at [86] that "[t]he current use of the Premises is ... for the purpose of a waste or resource transfer station." i. The erroneous finding at [86] that "the purpose of a waste or resource transfer station ... is a use that is permissible on the site, but only with development consent. ..". j. The erroneous finding at [86] that "[a]s the Premises does not benefit from development consent for use as a waste or resource transfer station, Shah is carrying out a use for which development consent is required and has not been obtained." k. The erroneous finding that at [87] that "[t]he statutory requirements for the issue of a stop use order are met." I. The erroneous finding that at [88] that it is implicit that because "[the appellant] is presently using the Premises for the purpose of scrap metal receipt, processing and transfer, which falls within the definition of a waste or resource transfer station under the CLEP" that purpose therefore "requires planning approval in the form of a development consent" and "[a]ccordingly, a stop use order can be issued to stop that use from continuing." m. The erroneous failure to apply the proper tests to characterise the purpose of the use of land. 2 The Commissioner erred on a question of law by ignoring evidence critical to issues in the case and contrary to assertions of fact made by the respondent and accepted by the Commissioner. PARTICULARS a. The failure to take into account the expert evidence that "On inspection of the site at 10.30am on Monday 18/07/2022, it was apparent that this is an extremely noise locality where there are multiple sources of noise, such as a Parramatta Road to the south, the Western Motorway to the north and then various other industrial uses around the site such as a metal related use on the site (Copper) and a large car repairer on Stubbs Street. Stubbs Street also leads to an overpass over the Western Motorway that is well used by trucks.." (at Joint Report at [52]). b. The failure to take into account the expert evidence that "PB and SM agree the subject premises also has no residential neighbours, and the nearest residential dwellings are on Parramatta Road approximately ?Orn from the site's Stubbs Street boundary across Parramatta Road." (at Joint Report at [53]). c. The failure to take into account the expert evidence that "SM considers noise generation as an ancillary contention as the Order specifies 'unauthorised use' which is the primary matter. However, SM does acknowledge that the noise generation of this operator does contribute to the overall noise of the locality ‑ whilst also noting the proximity of similar noise generating uses as identified by PB above. SM experienced the noise levels on site over two visits during mid‑week operations where noise from deliveries, forklifts, manual sorting into metal 'skip' bins and stripping of copper/metal pipes were occurring both within the building and within the associated carpark." d. The failure to take into account the expert opinion that "[t]he veracity of the compliant was not tested to determine the extent of the noise impact and whether or not that noise emanated from the premises or posed a life threatening hazard or a threat to public health or public safety." (at Appellant's Written Submissions at [13]). e. The failure to take into account the approved plans show that the approval includes movements of commercial vehicles and activities associated with weighing metal and the transfer of metal both in indoors and outdoor areas of the Premises. 3 Further and in the alternative to Ground 2, the Commissioner erred on a question of law by failing to apply the Briginshaw standard of proof in relation to the findings about the acoustic impacts of the Premises. 4 The Commissioner erred on a question of law by failing to exercise a discretion to revoke the development control because upon the facts the result of Order 2 is unreasonable or plainly unjust. 5 In the alternative to Ground 4, the Commissioner erred on a question of law by failing to exercise a discretion to extend the timeframe for compliance with the development control order to a date no earlier than 6 months after the material date because upon the facts the result of Order 2 is unreasonable or plainly unjust.

Representation

1. The Company was represented by Mr R Lancaster SC and Ms A Pearman, barrister (Mr Lancaster and Ms Pearman had not represented the Company before the Commissioner - the Company had then been represented by Mr N Weinberger, solicitor) and the Council by Ms N Hammond, barrister (Ms N Hammond had represented the Council before the Commissioner). Helpful written submissions addressing matters, which, as the proceedings unfolded, were necessary to be dealt with by me, were provided for the parties (although noting that the written submissions address matters appearing - with the exception of Ground 5 - to bear little resemblance to matters pleaded in the Summons necessitating my determination in the appeal as it was actually advanced before me).

Procedural matters at the commencement of the appeal

Abandonment of Grounds 2, 3 and 4

1. The written submissions for the Company disclosed that the Company now longer sought to rely on Grounds 2, 3 and 4. I therefore ignore them.

Proposed Ground 1A

1. At the commencement of the hearing, I raised with Mr Lancaster the fact that, although the written submissions which had been filed on behalf of the Company had been filed on 8 November 2022 and had, in paragraph 6, foreshadowed seeking leave to rely on Ground 1A as an amendment to the Summons, no Notice of Motion had been filed seeking such leave. No explanation was offered for this failure to seek formal approval to rely on that amendment.
2. Ms Hammond's written submissions were filed on 18 November 2022 in response to those advanced on behalf of the Company. In these submissions, at paragraph 17, she had indicated that the Council did not object to the granting of leave to the Company to rely on this additional ground of appeal.
3. In the following paragraphs of her written submissions, Ms Hammond raised the question of whether Ground 1A (and, by inference, other elements of the matters that were sought to be canvassed on appeal for the Company) were matters which had not been raised in the hearing before the Commissioner. In her written submissions, Ms Hammond cited the decision of the High Court in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28, where the plurality said, at [7]: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
4. With respect to what is set out immediately above, Ms Hammond submitted, at paragraphs 18 to 20 of her written submissions: 18. It is submitted that the Commissioner erred on a question of law by making the modified Order in terms that apply to "the premises" which are identified in the Order as "187 Parramatta Road Auburn", in circumstances where the Appellant leased only part of the premises. 19. The difficulty for the Appellant is that it did not raise this issue before the Commissioner. At no time during the proceedings below did the Appellant ever complain that the Order did not appropriately describe or define the premises that were the subject of the Order. 20. The Appellant is bound by the forensic decisions that it made in the conduct of the hearing before the Commissioner, and cannot complain that the Commissioner has erred on a question that was not the subject of any submission made below:[citation omitted].
5. During the hearing, I asked Ms Hammond, in light of the fact that the subsequent portions of her written submissions objected to the proposed Ground 1A on the basis that it was not a matter which had been raised before the Commissioner, whether her instructions were to maintain the position that the Council did not object to the proposed amendment. Ms Hammond indicated that the Council did not, as indicated in her written submissions, object to leave being granted to the Company to rely on this additional ground.
6. Following the above discussion, Mr Lancaster sought leave to amend the Summons by adding Ground 1A as a further ground of appeal. This proposed ground was in the following terms: 1A The Commissioner erred on a question of law by making the modified Stop Use Order in terms that require the Appellant to stop use and remove waste from "the premises" which are identified in the Stop Use Order as "187 Parramatta Road, Auburn", in circumstances in which: (a) the premises are subject to for leases, only one of which is a lease to the Appellant of part only of the premises, being the area described in Reasons at 10 and shown by the orange marking in fit figure 1 of the Reasons; (b) there was no evidence that the Appellant owned or used any part of the premises, other than its use of the area leased to the Appellant and identified in the Reasons at 10 and 39; and (c) since the Appellant was not, and is not the owner of, or the person using, the premises (other than the person using the area leased by the Appellant), there was no power under s 9.34(1)(a) and Pt 1 of Sch 5 of the EP&A Act to give the Stop Use Order in respect of "the premises", in either its original form or in its modified form.
7. There being no objection from the Council, leave was granted to rely on this new ground

The amendments to the particulars to Ground 1 of the Summons

1. I observed to Mr Lancaster that Ms Hammond's written submissions had complained that the primary written submissions on behalf of the Company had not addressed any of the matters contained in particulars (a) to (m) pleaded in support of Ground 1 raised by the Company in its challenge to the Commissioner's decision. However, she submitted that the Company's primary written submissions set out, in paragraph 29, what appeared to be two additional particulars in support of Ground 1. On first reading, paragraph 30 of the Company's primary written submissions also appeared to advance a further, new particular in support of Ground 1. It is appropriate to reproduce the terms of these two paragraphs: 29 For those reasons, the Commissioner erred on a question of law by misinterpretation of the legal meaning and effect of the 1979 development consent, in that: a. the Commissioner erred (Reasons at [76]) by taking into account the development application in the construction of the 1979 development consent, when the correct position is that the development application was not expressly or impliedly incorporated into the consent; and b. the Commissioner erred by failing to find that the 1979 development consent authorised the use of the premises for the purposes of a factory and/or use for general industry. 30 Further and in any event, even if the Commissioner did not err by having regard to the development application, the Commissioner erred in adopting an overly narrow interpretation of the use permitted by the 1979 development consent. The Commissioner found it permitted use only as a "foundry" (Reasons at [77]) and that all of the activities undertaken at the premises must be directed to that use, namely the production of metal castings (Reasons at [77]‑[78]).
2. Mr Lancaster accepted that that which was set out in paragraph 29 effectively constituted new particulars in support of Ground 1, particulars upon which the Company now sought to rely. With respect to paragraph 30, he indicated that this addressed particular (a) to Ground 1. I enquired of him whether he was seeking further leave to amend the Summons in order to rely upon the two matters in paragraph 29 as additional particulars in support of Ground 1. He indicated that he did so.
3. After seeking instructions, Ms Hammond indicated that the Council raised no objection to this further amendment. As a consequence, leave was also granted for this further amendment.

Introduction

1. Elements of the EPA Act, the Court Act, the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation), the Environmental Planning and Assessment Regulation 2021 (the 2021 Regulation), the Civil Procedure Act 2005 (the Civil Procedure Act) and the Cumberland LEP all arise for consideration in these proceedings. The relevant provisions are set out below.
2. It is also to be noted that the Commissioner needed to consider elements of the (now repealed) State Environmental Planning Policy (Infrastructure) 2008 (the 2008 SEPP) and its replacement, State Environmental Planning Policy (Transport and Infrastructure) 2021 (the 2021 SEPP). The relevant paragraphs of the Commissioner's judgment dealing with the 2008 SEPP and 2021 SEPP were [18], [19], [25] and [6.]. These were earlier reproduced at [10] of this decision as part of the extract from the Commissioner's judgment there quoted. It is unnecessary to set out the detail of the relevant provisions of the 2008 SEPP or the 2021 SEPP.
3. As explained in [25] and [26] of the Commissioner's decision - also set out at [10] of this decision - the operation of the 2008 SEPP and its replacement, the 2021 SEPP, had the effect of rendering "waste or resource management facilities" (and the range of subordinate activities falling within its definition) permissible in the B6 zone.

The EPA Act

1. It is not necessary to set out the provision of this enactment which provides the foundation for the Company's appeal. It is, however, appropriate to set out the provision which provides the basis upon which the Council issued the Order. This power is to be found in s 9.34(1)(a), a provision in the following terms: 9.34 Orders that may be given (1) The development control orders that may be given under this Act are as follows - (a) general orders in accordance with the table to Pt 1 of Sch 5, (b) …, (c) … (2) … (3) A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate).
2. The relevant elements of the table to Pt 1 of Sch 5 is in the following terms: Part 1 General Orders Column 1 Column 2 Column 3 To do what? When? To whom? Stop Use Order Premises are being used - • The owner of premises or building 1 To stop using premises or a building • for a prohibited purpose, or • The person using the premises or building • for a purpose for which a planning approval is required but has not been obtained, …

The Court Act

1. As earlier noted, this appeal has been brought pursuant to s 56A of the Court Act. This provision sets out the limited basis upon which such appeals may be brought (being confined to questions of law) and the powers of the Court available to me capable of being exercised in my disposing of this appeal. The provision is in the following terms: 56A Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioner's (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioner's. (2) On the hearing of an appeal under subsection (1), the Court shall - (a) remit the matter to the Commissioner or Commissioner's for determination by the Commissioner or Commissioner's in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. (3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

The Cumberland LEP

1. As earlier noted, the site is zoned B6 Enterprise Corridor in the Land Use Table of the Cumberland LEP. It is appropriate to set out, in full, the relevant element of the Land Use Table applicable to this zone. It is in the following terms: Zone B6 Enterprise Corridor 1 Objectives of zone • To promote businesses along main roads and to encourage a mix of compatible uses. • To provide a range of employment uses (including business, office, retail and light industrial uses). • To maintain the economic strength of centres by limiting retailing activity. 2 Permitted without consent Nil 3 Permitted with consent Building identification signs; Business identification signs; Business premises; Centre‑based child care facilities; Community facilities; Food and drink premises; Garden centres; Hardware and building supplies; Hotel or motel accommodation; Kiosks; Landscaping material supplies; Light industries; Markets; Neighbourhood shops; Office premises; Oyster aquaculture; Passenger transport facilities; Plant nurseries; Respite day care centres; Roads; Self‑storage units; Specialised retail premises; Tank‑based aquaculture; Timber yards; Vehicle sales or hire premises; Warehouse or distribution centres; Any other development not specified in item 2 or 4 4 Prohibited Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Commercial premises; Correctional centres; Crematoria; Depots; Early education and care facilities; Eco‑tourist facilities; Electricity generating works; Entertainment facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Helipads; Highway service centres; Home businesses; Home industries; Home occupations; Home occupations (sex services); Industrial retail outlets; Industries; Information and education facilities; Jetties; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Places of public worship; Pond‑based aquaculture; Port facilities; Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Research stations; Residential accommodation; Restricted premises; Rural industries; Sewerage systems; Sex services premises; Signage; Storage premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Veterinary hospitals; Waste or resource management facilities; Water recreation structures; Water supply systems; Wharf or boating facilities
2. As can be seen above, "Waste or resource management facilities" are prohibited land uses in the B6 zone. As can be seen from the definition of this term (set out earlier at [10] where I quote [16] of the Commissioner's decision), "waste or resource transfer station" is one of the range of uses falling under the definitional umbrella of "Waste or resource management facilities" and is the specific use relied upon by the Council for the purposes of the issuing of the Order.

The 2000 Regulation

1. The 2000 Regulation contains the first of the two definitions of "waste" to be noted for these proceedings. The definition in the 2000 Regulation is in the following terms: 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.

The 2021 Regulation

1. The second definition of "waste" is that contained in Sch 3, Pt 1 of the 2021 Regulation. This definition is in the following terms: (2) In this Schedule, waste includes a matter or thing that - (a) is solid, gaseous or liquid or a combination of solid, gaseous or liquid, and (b) is discarded or is refuse from processes or uses. (3) A substance may be waste for the purposes of this Schedule even if it may be - (a) reprocessed, re‑used or recycled, or (b) sold or intended for sale.

The Civil Procedure Act

1. The terms of s 98(1) of the Civil Procedure Act are engaged for my later set out costs determination. This provision is in the following terms: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

What this decision does not determine

1. As will be obvious from a reading of this decision and the elements of it which extract portions of the Commissioner's decision, the matters raised on appeal before me were substantially different from those which were the subject of the hearing and determination by the Commissioner. Given the conclusion which I have reached, one which results in the Council's Order (as amended by the Commissioner) being set aside on a basis not substantially argued before the Commissioner, and, indeed, advanced before me in a fashion somewhat contrary to the way the case was run before the Commissioner, it is appropriate to record two specific matters that are not the subject of consideration or determination in this decision. They can be stated in quite simple and brief terms. They are: 1. First, it has not been fully argued before me, or the Commissioner, the issue of whether or not the material that is being dealt with by the Company at the site constitutes a "resource" in any definitional fashion in any statutory instrument which might potentially be engaged for future consideration of the activities on the site should such consideration be required; and 2. Second, whatever might be the correct definitional descriptor of the material dealt with by the Company on the site, the question of whether or not the Company's activities constitute transferring of that material in the fashion that the word "transfer", as used in the term "waste or resource transfer facility", was dealt with at the hearing before the Commissioner or before me.
2. It is also to be noted that if I reach a conclusion that the Company's activities are not permitted by the 1979 development consent and the Company's activities are not to be characterised as being for the purpose of a waste or resource transfer station (as I have for each of these), it is not appropriate that I undertake any consideration of how, as a matter of fact, the Company's activities should be characterised. It is sufficient to note that, as I have concluded that the Company's activities do not fall within either of these permitted designations, this does not lead to the inevitable conclusion the Company's activities are prohibited - that is not within the scope of my consideration. For present purposes, all my conclusions lead to is the setting aside of the Council's Order as, on its terms, there is no proper foundation for it.

Introduction

1. There are two aspects of Ground 1 which require to be considered. The first is that which was set out in particular (a) of the Summons which commenced this appeal. The second is that which arises from particulars (h) to (j) of the Summons - but considered in the fashion addressed in Mr Lancaster's oral submissions and the Company's written submissions on the appeal as to how the purpose for which the Company's use of the premises should be properly characterised. This aspect of Ground 1 (as argued before me) also requires consideration in some detail.

Introduction

1. The basic proposition advanced on behalf of the Company had two separate and distinct limbs to it. The first was that a proper construction of the 1979 development consent earlier described applied to the Company's current activities on the site (the proposition being that, as I understood it, the Company's activities had intensified that which had been approved in the 1979 development consent but that, properly characterised, the activities still fell within the scope of that consent). On this basis, it was submitted that the 1979 development consent continued to operate in a fashion which provided an ongoing approval for the Company's activities. The second significant matter raised on behalf of the Company as an element of Ground 1 was whether or not the Commissioner's conclusion that the use of the site was as a waste or resource transfer station.
2. Independently of the outcome of consideration of that element founding particular (a) of Ground 1, Mr Lancaster submitted that the activities which are being conducted on the site by the Company cannot be characterised as being for the purpose of a "waste or resource transfer station" because, properly understood, the material with which the Company was dealing was not waste.
3. The first element of Ground 1 that was relied upon in the appeal, was that which was set out in particular (a) to Ground 1. It is appropriate to repeat this particular: The finding at [77] that "In granting the 1979 development consent, the use authorised by the consent is consistent with the description of the proposed development found in the development application, which is "metal manufacturing, foundry, general engineering and metal pressing"" is erroneously inconsistent with the finding in that same paragraph that "I consider that the purpose of that use is a foundry."
4. In this context, it is to be noted that the agreed position between the parties' town planning experts is that the 1979 development consent continued to operate for the site. It is also to be noted that, in these proceedings, that position is not challenged by the Council.
5. It is also to be recorded that, on the plans for which consent was granted in 1979, there were a number of markings designating particular areas as being the location of identified activities that were either existing aspects of the operations on the site or were locations where operations approved by the 1979 development application proposed that nominated activities were to take place in buildings which were to be erected (and have been erected) pursuant to that consent.
6. These, effectively, comprise the identification of the area within the buildings on the site which are within the orange area identified by agreement by the town planning experts (see diagram reproduced at Annexure A) as being for existing or future foundry activities and, separately, the delineated car‑parking spaces and access ways to the portion of the site which is identified as "car park". The position advanced on behalf of the Council is that that which is taking place in the car‑park, for the depositing of material in the Company's collection skips, does not constitute car‑parking.

The necessity for supplementary written submissions

Introduction

1. During the hearing, I drew the parties' attention to the decision of the Court of Appeal in Sevenex Pty Limited v Blue Mountains City Council [2011] NSWCA 223 (Sevenex) and gave an opportunity to provide short, supplementary written submissions as to whether and, if so how, that decision was potentially engaged for my consideration in these proceedings.
2. I also permitted the supplementary written submissions to address the question of how the issue of how the meaning of the word "waste" had been addressed by the parties before the Commissioner (if it had been addressed at all).
3. As the supplementary written submissions addressing these matters were brief, in the interests of speedy decision preparation, I reproduce those submissions in full. Those addressing the Court of Appeal's decision in Sevenex are reproduced below, whilst those addressing the definition of "waste" are set out in my addressing of the second element of Ground 1.

The supplementary written submissions for the Company

1. The supplementary written submissions for the Company on Sevenex are set out below: Sevenex Pty Ltd v Blue Mountains City Council 2 Sevenex raised a question of the proper construction of a 1993 development consent and a characterisation issue, specifically whether the proposed use of the land (for an aboriginal cultural, koala and reptile exhibit) was authorised by the 1993 consent granted for "commercial development" on the land. 3 The decision of the Court of Appeal Sevenex supports the applicant's submission that the use approved in the present case in 1979 was either "factory" or "general industry". 4 The Sevenex decisions at first instance and on the s 56A Appeal, to the effect that the 1993 consent incorporated the approved plans which nominated uses of particular areas of premises, do not provide any real assistance to the resolution of this matter, as those findings rely on the different context of that case and are distinguishable. 5 The terms of the first paragraph of the 1993 consent in Sevenex, preceding Conditions of Consent, were significant and should be noted. At first instance, it was found that the 1993 consent "was specifically granted, defined and confined… by the words in the second sentence 'Development Application as shown on the plans DRS No. 92016 SK/1 to SK/15'". As a consequence, rather than being a development consent for a broad purpose, the approved development was to use the various spaces for the building for the various uses designated on the 1993 consent plans. 6 Sheahan J on appeal recorded the Senior Commissioner's findings that the plans were properly incorporated into the consent and that the consent was not for a broad and unconstrained commercial purpose but rather to use the various spaces in the building for the various uses designated on the March 1993 consent plans, and did not disturb those findings. 7 On appeal to the Court of Appeal, in a short judgment, and given a change in zoning, the Court noted the only way the applicant could succeed was to show that it had existing use rights in respect of its proposal for an aboriginal cultural, koala and reptile exhibit. 8 The Court recorded at [11] the applicant's reliance upon existing use rights and in particular s 91(4) of the EP&A Act as in force at the relevant time: (4) A consent to a development application for the carrying out of development, being the erection of a building, shall be sufficient authorise the use of the building when erected for the purpose for which it was erected where that purpose is specified in the development application. (italics added) 9 While the development application was not in evidence before the Court of Appeal, relevant to the present proceedings, the Court focused upon the "purpose" of the 1993 consent7 noting the Senior Commissioner's undisturbed finding that the consent was not for a "broad and unconstrained commercial purpose" but rather to use the various spaces in the building for the various uses designated on the March 1993 consent plans. 10 After a discussion of authorities on "purpose", including Preston CJ of LEC's decision in Chamwell Pty Ltd v Strathfield City Council (Chamwell) at [27], the Court did not in terms find (or state any generally applicable principle) that the uses should be limited to those uses specified on the plans (those plans not being before the Court), but rather (i) acknowledged that "the purpose [of a use] should be described in liberal language"; and that (ii) the applicant's description of the purpose in that case as "commercial development" was too vague and nebulous. 11 At [24] the Court found that the purpose of the use was for a café and the sale of souvenirs. Application of Sevenex ‑ Court of Appeal 12 The characterisation issue presently before the Court is whether the 1979 consent for the "erection of additions and new buildings" was for the purpose of "factory" or "general industry". For the reasons given by the Court of Appeal on use being for a "purpose", and that purpose should be described in liberal language, the Court would accept that the "erection of additions and new buildings" was for the purpose of "factory" or "general industry". This follows the prior history of consents which authorised a use in terms for the purposes of a "factory" or "general industry" and from the description "existing factory" as the primary descriptor on each page of the approved plans. 13 The Court would also be satisfied with the purpose of "factory", being a purpose that is not "vague or nebulous" unlike the "commercial development" advanced in Sevenex. 14 Factory, a place where "industrial activity" takes place, is akin to the café use found by the Court of Appeal in Sevenex. "Industrial activity" has a defined meaning in Cumberland LEP. "General industry" also has a defined meaning in the Cumberland LEP, meaning a building or place used to carry out an "industrial activity". In this way "general industry" is distinguished from "commercial development". It is not at large, but a defined term. Both definitions of "general industry" and "industrial activity" were recorded in the Commissioner's Reasons at [15]. 15 Even if the Court finds the development application is incorporated into the 1979 consent, which the applicant submits it will not so find, the Court would accept on the authority of Sevenex in the Court of Appeal, that the uses nominated in the Development Application - metal manufacturing, foundry, general engineering and metal pressing - are for the purpose of "factory" or "general industry". 16 The Court can be satisfied that a purpose of either "factory" or "general industry" is the purpose authorised by the 1979 consent.

The supplementary written submissions for the Council

1. The supplementary written submissions for the Council on Sevenex are set out below: Introduction 1. These submissions are prepared pursuant to the Court's direction that the parties provide submissions addressing the application of Sevenex v Blue Mountains City Council, and how "waste or resources" was addressed in the proceedings below. Sevenex v Blue Mountains City Council 2. The Sevenex proceedings concerned, inter alia, the construction of a development consent granted in 1993 and whether the proposed development (which was otherwise prohibited) was a use that was permitted by the 1993 consent. The proposed development was a koala and reptile exhibit and an Aboriginal Cultural Trail on the lower level of a retail complex at Echo Point, Katoomba. The 1993 consent stated that the approval was for "the establishment of a commercial development…" and specifically incorporated the approved plans. The 1993 plans for the lower level described the approved uses as "retail and crafts". Relying on the development consent, the appellant submitted that council had granted consent to a "commercial development" on the land. The council submitted that the approved use was confined to the commercial uses as expressly noted on the plans, being retail and crafts. 3. The Court at first instance held that, on a proper construction of the consent, the consent did not approve "a broad and unconstrained commercial purpose", rather, it specifically granted permission "to use the various spaces in the building for the uses designated on the March 1993 consent plans". Thus the consent on the lower level was for retail and craft uses, and the appellant was not entitled to rely on a broad "commercial purpose" characterisation approach to found permissibility for the proposed koala and reptile exhibit. 4. The Commissioner's decision at first instance was upheld by this Court on appeal under s 56A of the Land and Environment Court Act, and by the Court of Appeal. The Court in the s.56A appeal held that "the 1993 consent is very clear on its face, and expressly incorporates the approved plans, which are very specific in defining the use of various areas of the "commercial development" approved." The Court upheld the decision made at first instance, finding that "the term "commercial development" is far too broad in scope to be relied upon …". 5. The Court of Appeal considered the "purpose" of the 1993 consent noting the Senior Commissioner's conclusion that the consent was not for a "broad and unconstrained commercial purpose" but rather "to use the various spaces in the building for the various uses designated on the March 1993 consent plans" (a finding that was undisturbed on appeal under s 56A). 6. After considering authorities on what is meant by "purpose", including Preston CJ in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [27], the Court of Appeal held as follows, at [20]: Granted that the purpose should be described in liberal language, it still seems to me that describing the purpose as commercial development is far too vague and nebulous. What the plans showed were the sale of souvenirs and food, principally for tourists; what is now sought is to include some tourist entertainment including a mini zoo. 7. See also at [24]: Even if one assumes that the purpose stated in the development application… is the same as in the development consent, it is not a proper construction of the 1993 consent to say that it was for unspecified commercial development. The development consent refers to the plans which were attached to the application and these show that the area in question was to be used for a café and the sale of souvenirs. That was the purpose and that is quite foreign from the present situation. 8. In light of those findings, the Appellant's further submissions at [10] would not be accepted. The Court did find at [24], in terms, that the uses for a café and sale of souvenirs as shown in the approved plans was the approved purpose. 9. The approach taken by the Commissioner below in this case is the same approach that was taken by the Court in Sevenex. 10. The Commissioner correctly identified the legal principles relevant to determining the purpose of the use of land. The Commissioner determined that the use authorised by the 1979 consent, by reference to the DA and the approved plans, was "metal manufacturing, foundry, general engineering and metal pressing", and that the purpose of that use was a "foundry". 11. That construction was available on the plans alone, should the Court determine that the DA was not incorporated into the consent. The Commissioner separately determined the approved use by reference to the approved plans, concluding that the use for foundry was "also consistent with the plans approved by the consent, which show areas of the foundry, including the pressing shop, machine shop and show rooms". 12. The Court would reject the appellant's submission that the 1979 consent was for the purpose of an unspecified "factory" or "general industry". Those purposes are too broad and nebulous in circumstances where the approved plans specifically identify the various approved uses, all of which point to the purpose of foundry. 13. The appellant relies on the description in the consent of the application for "erection of additions and new buildings", prior consents, and what it submits is the "primary description" on each page of the approved plans, "existing factory". The words at the foot of each page of the plans, "Alterations & Additions to Existing Factory at 187 Parramatta Road Auburn for William Wallbank & Sons" appear to be the name given to the plans by the architect. The appellant's submissions ignore the descriptions on the approved plans. Those descriptions all support a finding that the approved uses were for the purpose of foundry. 14. The appellant gave evidence of its use of the site to process approximately 20 tonnes of scrap metal per week and 3 to 4 tonnes of other materials such as batteries and tyres per weekday (i.e. 18‑24 tonnes of other materials such as batteries and tyres per week), the purchase and sorting of metals, processing on site and the exportation of metals. In its Statement of Facts and Contentions in Reply the appellant described the nature of its use as the purchase and sale, gathering and sorting of metal scraps and copper to export overseas. 15. Council gave evidence that materials were delivered by customers who unloaded their materials into skip bins in the car park, by throwing the materials into the bins (causing noise disturbance to neighbours). The bins were then being transported into the warehouse for sorting and processing. 16. The Commissioner was correct to find that the current activities were for the purpose of scrap metal receipt, processing and transfer, which was not consistent with the purpose that was approved by the 1979 consent. 17. As the Court of Appeal said in Sevenex at [22], "what is here proposed [is] more than an incidental change in the way that a trade is carried out". Shah's current operations did not accord in any way with the 1979 consent. No manufacturing took place and none of the machinery approved by the consent was installed or used. The car park was not used for car parking for the large number of employees required for foundry works, rather, it was used for the receipt of materials from customers. When one looks at the 1979 plans and the prescribed uses, that is "quite foreign" from the appellant's present use. 18. It matters not that "industry" and "general industry" are defined terms in the Cumberland LEP. What is required is to construe the 1979 consent to determine the approved uses and the purpose of those uses. That is what the Commissioner did in her Decision at [75]‑[81]. 19. The Court would reject the submission that the purpose of the 1979 consent is for an unspecified factory or general industry. Such purposes are too vague and nebulous, just as "commercial development" was held to be as such in Sevenex.

The supplementary written reply submissions for the Company

1. The supplementary written reply submissions for the Company on Sevenex are set out below: 1. These submissions are in reply to the respondent's Further Submissions (RFS). Sevenex Pty Ltd v Blue Mountains City Council 2. The RFS provide no persuasive reason to doubt the appellant's Further Submissions (AFS) at [10], that the CA in Sevenex did not in terms find (or state any generally applicable principle) that the uses should be limited to those uses specified on the plans, but rather, (i) acknowledged that "the purpose [of a use] should be described in liberal language"; and that (ii) the applicant's description of the purpose in that case as "commercial development" was too vague and nebulous. 3. Having made no statement of principle regarding uses specified on plans, the Court would not accept the submission in RFS [9]. The approach taken by the Senior Commissioner was not specifically addressed in the Court of Appeal. 4. Further, the Sevenex decisions at first instance and on the s 56A appeal do not provide any assistance on the question of whether the 1979 consent should be limited to uses specified on the plans, since they are clearly distinguishable on the facts. 5. There is no disagreement with RFS [8] that the CA found at [24] that the purpose of the use was for a café and the sale of souvenirs. To the contrary. This finding exemplifies the guidance of the CA on the liberal approach to the interpretation of "purpose". 6. The Commissioner's finding in this case that the use authorised by the 1979 consent by reference to inter alia the plans was "metal manufacturing, foundry, general engineering and metal pressing", RFS [10], was an erroreous finding given the CA's guidance on a liberal approach to interpretation of "purpose". The Comissioner's further finding that the purpose was "foundry" further narrowed the multiple uses described on plans to a single described use. This is both contrary to Sevenex CA and illogical. 7. The appellant's submissions correctly ignore the descriptions on the approved plans, RFS [13], because of the guidance given in Sevenex CA. 8. The calculations of materials processed each week at RFS [14] misstate the appellant's evidence. The appellant gives evidence of the amount of scrap metal and other materials processed daily. The RFS has multipled "other materials" by a factor of 6 but not the scrap metal. 9. The appellant's "customers" referred to in RFS [15] are relevantly to be distinguished from the general public who can use a "waste or resource transfer station". The Applicant's expert in the Joint Report at [26] notes, "Western Sydney Scrap metals do not accept metals from the public (they only buy from other businesses with an ABN)." This was also noted in the Applicant's written submissions below at [30]. 10. The appellant's business of dealing in the goods received from business customers for "commercial purposes", as described in the definition of "industrial activity" at [15] below, supports the finding that the purpose of the premises was "factory" or "general industry". This is consistent with Sevenex CA. 11. Contrary to RFS [16], the Commissioner was in error in finding that the appellant's activities were inconsistent with the purpose that was approved in the 1979 consent. 12. For the reasons given in AFS [12]‑[16] the Court would find that the purpose authorised by the 1979 consent was for the purpose of "factory" or "general industry".

The 1979 development consent plans

1. As elsewhere discussed, there was a dispute between the parties before the Commissioner (and a matter which is alive in this appeal) as to whether the Commissioner was entitled to have regard to the terms of the development application made in 1979 which provided the basis for the granting of the 1979 development consent. However, there is no dispute that the plans that were approved as part of the granting of the 1979 development consent (as nominated expressly in the Conditions of Consent) incorporated in those plans.
2. The Commissioner's decision, at [75] to [84], explained why she did not accept the submission made to her on behalf of the Company that the Company's activities were ones fitting within the scope of the 1979 development consent and, therefore, were not appropriate to be characterised as "a waste or resource transfer station". These paragraphs of her decision are in the following terms: The current use of the site is not within the scope of the 1979 development consent 75 It is well established that in planning law, use must be for a purpose: Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [51]. The use of land is the "physical acts by which the land is made to serve some purpose": Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] ALR 277 at 508. The characterisation of the purpose of a use of land "is not carried out by reference to the detailed activities, transactions or processes" (Abret at [52]). Instead, the purpose is "identified as the end for which the premises were being used" (Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 311). 76 The use authorised by the 1979 development consent is not characterised by the individual activities carried out on the site, but by the purpose served by the activities approved by the consent and the end for which the site was approved to be used. That purpose can be understood from the grant of the application for development consent, together with the plans that are approved by the grant of consent. 77 In granting the 1979 development consent, the use authorised by the consent is consistent with the description of the proposed development found in the development application, which is "metal manufacturing, foundry, general engineering and metal pressing". I consider that the purpose of that use is a foundry. I accept the definition that is agreed by the parties that a foundry is "a place where metal castings are produced", and that a casting is an object made by pouring molten metal or other material into a mould. 78 Each of the individual activities that are approved to be carried out on the site are directed to the purpose of a foundry. That is, the "metal manufacturing", "general engineering" and "metal pressing" that are described as the proposed development in the development application are each activities that are carried out for the purpose of the foundry. Similarly, the list of the machinery that is currently installed, "lathes, metal planes, milling, grinding and general engineering machines", and the description of the machinery to be installed as part of the development, "power presses, metal guillotines and new induction melting machines", are all machinery that is for the purpose of the foundry. 79 The waste that is described in the development application as being produced by the use is consistent with the purpose of the use as a foundry: sand, which is used in the casting process; and swarf, which are the small offcuts that result from cutting metal to shape. 80 That the use approved by the 1979 development consent is for the purpose of a foundry is also consistent with the plans approved by the consent, which show areas of the foundry, including the pressing shop, machine shop and show rooms. 81 It is therefore clear that the purpose of the use authorised by the 1979 development consent is as a foundry, with all of the approved activities, machinery, and plans, directed to the purpose of a foundry. This is the only use authorised by the 1979 development consent. 82 However, the current activities on the Premises are not a use for the purpose of a foundry and are therefore not authorised by the 1979 development consent. 83 The current activities on the Premises are for the purpose of scrap metal receipt, processing and transfer. It is conceded by Shah that the current activities involve the receiving of ferrous and non-ferrous metal scraps on the Premises by purchase, the sorting of those scraps into different types of metals (including the removal of non-metal parts) and the sale of the scrap metal to metal foundries, overseas buyers and other businesses. This includes loading the metals onto shipping containers for overseas export. 84 It matters not that some of the activities approved by the 1979 development consent overlap with the current activities on the Premises. What is relevant is that the purpose of the use approved by the 1979 development consent is not the purpose of the use currently undertaken on the Premises. Whereas the former was for the purpose of a foundry, the latter is for the purpose of scrap metal receipt, processing and transfer. Accordingly, the current activities on the Premises are not authorised by the 1979 development consent, as they are not for the purpose of the use authorised by that consent. The current activities are therefore carried out without development consent.

The Company's submissions on the first element of Ground 1

1. The submissions in support of this particular were distilled in paragraphs 33 to 35 of the written submissions on behalf of the Company. Those paragraphs were in the following terms (footnotes omitted): 33. The Appellant says that its actual use of its leased area was and is consistent with the description of the permitted use as "metal manufacturing, foundry, general engineering and metal pressing". The activities carried out by the Appellant involve activities that are substantially the same as the activities involved in preparatory work in a foundry, such as receiving materials containing metals, weighing them, sorting them, processing them (by stripping plastic from wires). The fact that the Appellant did not itself melt down the metal and produce castings does not take the Appellant's activities outside the authority of the 1979 development consent. Indeed, the evidence was that the Appellant sold its metal to customers who will manufacture products from the metal, demonstrating that the Appellant's activities were part of a process of metal manufacturing. 34. The characterisation of a use of land is concerned with the purpose of that use, not the individual activities carried out. The purpose of the use of the premises by the Appellant is metal manufacturing notwithstanding that the last stage of the manufacturing activity does not occur at the premises. 35. Accordingly, the Commissioner should have found that (i) the 1979 development consent permitted use of the premises as a factory and/or for industry, which thereby authorised the actual use of the premises by the Appellant; or (ii) in the alternative, the use permitted by the 1979 development consent was not limited to "foundry" use and the actual use of the premises by the Appellant was within the activities authorised by a consent for "metal manufacturing, foundry, general engineering and metal pressing".
2. As can be seen from the way this element of Ground 1 is now articulated, it proposes that the Commissioner was wrong in rejecting the proposition advanced below on behalf of the Company that the correct characterisation of the activities being undertaken by the Company on the site should have led the Commissioner to conclude that what was granted approval, by virtue of the 1979 development consent, was not, relevantly, use for the purposes of a foundry but was, at a more general level, use of the site as a factory and/or use for general industry (this being, in a hierarchical sense, one level up from the more specific level of conclusion drawn by the Commissioner).
3. With respect to this position, the submissions made on behalf of the Company proposed, as their primary foundation, that the Commissioner, impermissibly, had had regard to the development application which had been made to the then consent authority (Auburn Council - now absorbed into the Council by amalgamation), rather than confining her consideration to the express terms of the 1979 development consent and the plans expressly incorporated in it by reference.
4. The submission was founded on the proposition that there was no basis to do so, consistent with the guidance given by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 as to what documents might be available to be considered in deriving a proper understanding of the terms and scope of a development consent.
5. The position advanced for the Company is that, first, it was not permissible for the Commissioner to have had regard to the terms of the development application giving rise to the 1979 development consent to derive her conclusion as to the specific characterisation to be applied to the permitted activities on the site pursuant to that consent (by having regard to that which was set out at paragraph 5 of the development application form where, in response to the question "Description of Proposed Development", the nominated answer was (Exhibit C, Tab 19(18), folio 846): metal manufacturing, foundry, general engineering & metal pressing
6. As a consequence of this impermissible consideration of the terms of the development application, Mr Lancaster submitted, the Commissioner applied an inappropriately narrow and precise characterisation to the activities being undertaken by the Company on the site.
7. There was nothing in the terms of the development consent document itself (Exhibit C, Tab 20, folio 852), he proposed, that provided any basis upon which to conclude that there was a proper reason to have regard to the development application for the purposes of obtaining a proper understanding of what was approved by the Council as set out in that development consent or in any of the conditions that were listed on the Notice of Determination.

The submissions for the Council on the first element of Ground 1

1. Ms Hammond's written submissions on this point were in the following terms (at paragraphs 38 and 39): 38. Here, it was appropriate for the Court to accept that the 1979 consent incorporated the development application for the following reasons: a. The consent specifically referred to the development application in three places, and specifically "approved of the application" subject to conditions (AB Tab 20, 852): "I refer to your application dated 27.7.79…" "Council approved of the application subject to the following conditions:…" b. Reference to the development application is required in order to properly understand condition e, which concerns the installation of existing or proposed machinery, as the development applications describes in detail the existing and proposed machinery. 39. Even if the Court finds that the Commissioner erred in taking into account the development application in construing the 1979 consent, that error is not material, and would not change the Commissioner's decision. It is not vitiating. Construction of 1979 consent and the incorporated plans, without the development application, would have led the Commissioner to the same conclusion. That is, that the use authorised by the 1979 Consent was for the purpose of a foundry. That conclusion was open to the Commissioner on the basis of the 1979 Consent itself and the approved plans which were specifically incorporated.
2. During the course of her oral submissions, she made specific reference to condition (e) of the 1979 development consent as providing a basis upon which to found the proposition that it was appropriate for the Commissioner to have had regard to, and rely upon, the terms of the development application. It is appropriate to reproduce the terms of this condition: e. All machinery existing or proposed to be installed shall be installed in such a manner so as not to cause interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit oil or otherwise.
3. Ms Hammond also referred to the fact that a significant element of the basis upon which the Council's concerns about the Company's activities arose was the adverse noise impacts on other premises in the vicinity.

Consideration of the first element of Ground 1

1. During the course of the hearing, when Mr Lancaster was addressing the two elements of the submissions on behalf the Company as to how the Company's activities were to be characterised, and had been inappropriately/impermissibly characterised by the Commissioner, I put the proposition to him that it was sufficient for the purposes of the Company's case on appeal that I determine that the Company's activities were not capable of being characterised as those of a waste or resource transfer station and that, if I reached that conclusion, that was a sufficient basis upon which to uphold the Company's appeal (albeit that this was not a basis which had been advanced on behalf of the Company before the Commissioner). He agreed with that proposition.
2. However, on reflection, I am satisfied that it is appropriate that I should also address the first of the elements in Ground 1. For the reasons which follow, I am satisfied that the Company's activities do not fall within those which are permitted by the 1979 development consent. I reach this conclusion, for the reasons which follow, without having the necessity to have regard to the matters set out in the development application which led to the granting of the 1979 development consent.
3. I have earlier set out the terms of condition (e) of the 1979 development consent relied upon for the Council as a basis for concluding that the development application which gave rise to the 1979 development consent should be a document regarded as being incorporated for the purposes of consideration both before the Commissioner and before me. I have earlier noted that condition (e) related to a significant element of the foundation of the Council's current complaint concerning the Company's activities. There are two observations to be made in this regard. The first is that the precise wording of the condition does not provide any basis upon which it could be concluded that the terms of the development application were incorporated by reference in a fashion falling within the strictures of Allendale cited by Mr Lancaster.
4. Indeed, the line of earlier authority going back to Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 as to what might, or might not, properly permit such incorporation by reference clearly demonstrates that there is no present basis to reach such a conclusion.
5. In addition, whether or not the Company's present activities constitute ones which, as a matter of practical effect, involve breaches of condition (e) of the 1979 development consent is also a matter of irrelevance, in the present context, for two reasons. First, as dealt with below, I am satisfied that the Company's activities, contrary to the submissions advanced on its behalf, do not fall within the scope of what is permitted by the subsisting 1979 development consent. Secondly, equally importantly, the terms of the Order imposed by the Council (as amended by the Commissioner) do not seek to invoke condition (e) of the 1979 development consent and, indeed, appear to disavow reliance on that consent condition. Although potentially forensically fascinating (but down a rabbit burrow into which I must not be tempted), the Council has not sought to impose a Stop Use Order on the basis that the 1979 development consent applied and the Company was operating in breach of condition (e) of that consent.
6. I am satisfied that, in the circumstances of the plans that were approved by the Council in 1979, a proper application of what arises from the Court of Appeal's decision in Sevenex means that the area within the building which is currently occupied by the Company was designated as being for the purpose of a present or proposed foundry as part of the activities approved by the 1979 development consent. This can be seen clearly from the relevant element of the second sheet of the plans that were the subject of the 1979 development consent plans. In order to understand this point, a cropped copy of the first A3 sheet of the 1979 plans (Exhibit C, Tab 21, folio 854) is reproduced at Annexure B to this decision. This plan clearly shows that the element of the building occupied currently as the left‑hand end of Company's premises, is designated "Existing foundry", whilst the element of the building which was approved to be constructed by the 1979 development consent and which is now the right‑hand end of Company's premises, is also clearly nominated as being "Proposed new foundry area".
7. That specific designation of "foundry" is to be preferred rather than the more general designation of "factory and/or general industry", as advanced for the Company, as that general designation is at odds with the approach taken by the Court of Appeal in Sevenex. Even if the totality of the operations approved by the 1979 development consent might be considered to be encompassed within those broad descriptors (as was the position in Sevenex for the overall use of the whole premises as a café), the precise designation of the spaces within the building occupied by the Company imposes an identified restriction on what is permitted in those spaces (consistent with the approach taken in Sevenex). Thus, the elements of the building occupied by the Company were correctly held by the Commissioner to be for the purposes of a foundry, a use which was not consistent with that which was actually being undertaken by the Company in those portions of the building.
8. As the Company's activities are not consistent with use of this space for the purpose of a foundry, I am satisfied that the use by the Company is not consistent with that which was approved by the Council in the 1979 development consent.
9. In reaching this conclusion, it is to be noted that it is unnecessary to have regard to the terms of the development application which commenced the process with the Council leading to the granting of the 1979 development consent. For that reason, the question of whether or not it was appropriate (as agreed was appropriate by the parties' planning experts before the Commissioner) that the Commissioner should have had regard to the terms of the development application giving rise to the 1979 development consent is a matter of irrelevance.
10. Given my finding that, although the 1979 development consent is accepted by the parties (and was accepted by the parties before the Commissioner) as continuing to be on foot, my finding that the Company's activities do not fall within the scope of what was permitted by the 1979 development consent means that the conditions - particularly condition (e) relied upon by Ms Hammond as a basis for submitting that the development application was properly a document to which the Commissioner should have regard - is rendered inapplicable to the activities currently undertaken by the Company, because those activities are not ones permitted by the 1979 development consent.
11. This element of Ground 1 fails.

Introduction

1. The second definitional argument advanced for the Company before me was that the material with which the Company was dealing was not waste as a proper understanding of the necessary definition of that term required. In this context, it is to be noted that the relevant definition of "waste" (whether that from the 2000 Regulation or the 2021 Regulation being irrelevant as they are both to the same effect in these circumstances) was not drawn to the attention of the Commissioner.
2. This second element of Ground 1 has a link (albeit a thin and tenuous one) with matters that were raised before the Commissioner. This can be seen from paragraph 23 of the element of the Company's supplementary written submissions addressing waste (later reproduced). This tenuous link is sufficient, under the circumstances, to set aside the issue of whether or not Metwally should be applied to exclude the fashion in which this second element of Ground 1 is now advanced before me.
3. However, as can be seen from the way the matter was dealt with before the Commissioner (neither side taking the Commissioner to the relevant and applicable definitional provisions, nor their being any significant argument about the proper classification of the materials dealt with by the Company), it can clearly be seen that the way that this element of the Company's case advanced before me on appeal differed, as did the position advanced on behalf of the Council on appeal, from the case below.
4. For this reason, I am satisfied, it is appropriate to turn to the merits of this element of the case now advanced on behalf of the Company. It is necessary, later, to consider the submissions advanced concerning the decision of Pain J in Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49 (Glass Recovery Services), a decision critical to the conclusion which I have reached concerning this second element of Ground 1. I later set out, in my consideration of this element, the position that obtained below concerning the decision in Glass Recovery Services.
5. In her decision, the Commissioner's addressed this topic, at [85] and [86], saying: The current use falls within the definition of a waste or resource transfer station 85 I accept the Council's position that this current use for scrap metal receipt, processing and transfer falls within the definition of a "waste or resource transfer station". The Premises are used for the "collection and transfer" of waste in the form of scrap metal, in that they receive the scrap metal, sort it, compact it and store it temporarily before distributing it to buyers by either direct sale or loading it onto shipping containers for transport. This squarely falls within the definition of "waste or resource transfer station" contained in the CLEP. There is nothing in that definition that precludes the "waste or resource" from being purchased or sold. 86 The current use of the Premises is therefore for the purpose of a waste or resource transfer station. This is a use that is permissible on the site, but only with development consent, pursuant to the SEPP TI. As the Premises does not benefit from development consent for use as a waste or resource transfer station, Shah is carrying out a use for which development consent is required and has not been obtained.
6. As can be seen, the Commissioner's decision makes it clear that the status of the material being dealt with by the Company on the site was not a matter put in significant issue before her.

The Company's submissions on the second element of Ground 1

1. This element of Ground 1 was advanced in the Company's written submissions in the context of a submission concerning how the characterisation of the use should be understood to support the proposition that the Company's activities fitted within the scope of the 1979 development consent's approval.
2. However, the submissions advanced on behalf of the Company as developed orally by Mr Lancaster also can be properly understood to advance the proposition that, even if the Company's use did not fall within the scope of the 1979 development consent, its use was also not appropriate to be characterised as being for the purposes of a "waste or resource transfer station" in the fashion advanced by the Council. This was because that which was being dealt with by the Company was not, on the case now advanced, to be regarded as waste. In this context, paragraphs 36 to 45 of the written submissions for the Company set out the basis for this proposed approach to the characterisation of the Company's use of the site. These paragraphs in the following terms: 36 It may be accepted that development for the purposes of a waste or resource transfer station at the premises would require development consent and that there is no current development consent that authorises development for that purpose applicable to the premises. 37 The Commissioner concluded that the Appellant's use of the premise is for the purpose of waste or resource transfer station (Reasons at [85]). 38 In order to reach the conclusion that the use of the premises should be so characterised, the Commissioner ought to have considered whether the metal received, processed and sold at the premises is "waste" within the meaning of the applicable environmental planning instruments. The Commissioner does not expressly reach a conclusion on this issue, although it is implicit from the above conclusion that she was satisfied that the metal in question is waste or resource. 39 At the hearing below, the Appellant argued that the use of the premises was not for the purpose of a waste or resource transfer station because the metal is not waste. The Appellant's expert put it in the joint expert report dated 22 July 2022 at [35] as follows: PB considers a waste or resource management facility a use where people or companies bring their waste to a place for it to be disposed of. A fee is paid to dispose of that waste. The Western Sydney Scrap Metal use of the site is not such a use, as they buy metal from others for processing, sorting and then sale to a third party. 40 The Council's position is set out in the Reasons at [67]-[69]. 41 The only reason given by the Commissioner for concluding that the metal is waste is in the last sentence of paragraph [85]: that there is nothing in the definition of "waste or resource transfer facility" that precludes the "waste or resource" from being sold. The Commissioner also accepted the Council's position (as noted above). 42 In Glass Recovery Services, Pain J considered the meaning of "waste" for the purposes of the definition of "resource recovery facility" under the Infrastructure SEPP. This consideration is also relevant to the meaning of "waste or resource transfer station" because "resource recovery facility" and "waste or resource transfer station" are both species of the genus "waste or resource management facility" under the Infrastructure SEPP. After noting that there is no definition of waste in the Infrastructure SEPP, Pain J rejected a submission that the definition in Schedule 3 of the EPA Regulation should be applied by analogy16. Instead, her Honour considered the ordinary meaning of the word in its statutory context. 43 Justice Pain found it instructive to ask the question as to whose view of whether material is waste is relevant for the purposes of the provision. In the statutory context, her Honour concluded that it is relevant to consider whether a material is waste in the hands of the operator on the facility17. The fact that the operator (in that case, a facility that processed used glass) paid for the material (in that case, broken glass) indicated that it was not waste in the hands of the operator. This led to the ultimate conclusion that the used glass should not be classified as "waste", meaning surplus or abandoned at the facility.18 44 The Commissioner's decision in the present case is inconsistent with Justice Pain's reasoning and decision. The Commissioner concluded that the fact that the metal is paid for by the Appellant does not preclude it from being "waste". However, the fact that the Appellant pays for metal received at the facility is relevant to the question of whether it is waste in the statutory context, according to the reasoning in Glass Recovery Services. On the facts, the metal received at the premises is not waste in the hands of the Appellant or to its customers to whom the metal is sold. 44 The Commissioner may also have considered the metal to be a "resource" (see the last sentence in Reasons at [85]). Neither the Council not the Appellant argued that the metal was "resource" within the meaning of "waste or resource transfer station". The Commissioner gave no reasons for so concluding and gave no notice to the Appellant that she was minded to so conclude in circumstances where the Appellant had argued that the metal is not "waste". 45 Accordingly, the Commissioner erred in law in concluding that the proper characterisation of the actual use undertaken by the Appellant is of a "waste or resource transfer station".
3. The status of the material being dealt with by the Company on the site is, now, squarely raised in a broader context, with Mr Lancaster submitting that the material being dealt with by the Company is regarded by the Company as an asset (indeed, it is the foundation of the Company's business) ‑ an asset for which the Company makes payment to those who deposit the material in a skip‑bin in the designated parking area ‑ although the Company then sells the material for use by others.
4. It was Mr Lancaster's submission that, in the hands of the Company, the material was not "waste" (whatever might have been its status in the hands of those who delivered the material to the Company). A proper understanding of the scope of the applicable definition makes this clear, he said. For the foundation for this submission, Mr Lancaster proposed that the consideration by Pain J in Glass Recovery Services provided a reasoned and authoritative conclusion in support of this proposition. He took me to [83] and [84] of her Honour's decision, paragraphs reading: 83 In this matter the consideration of "waste" occurs in the context of the operation of a facility which processes used glass. The statutory context suggests the actions of the operator of the facility are relevant to consider in the overall mix. The Defendant purchases glass or pays for its delivery from the MRF and pays Bottlecyclers for glass delivered. The payment for glass supplied by merchant suppliers is reimbursed by OI. The stream of glass supplied by the small merchant suppliers is owned by OI and is never the Defendant's property. This behaviour suggests the used glass is not a waste as it is not unused or superfluous in the hands of the Defendant. The contract with OI in exhibit D shows there is demand for used, refined glass as a resource for making new glass products. 84 The reasoning in Carter Holt, while not binding on me, supports this approach to construction. The paper manufacturer in that case was found to be buying secondhand goods not waste. Carter Holt can be considered as the OI equivalent in the relevant paper manufacturing process as it processed the used paper into new paper. In this case there is arguably a further intermediate step in the provision of recycled glass to OI which takes place at the Defendant's facility after the initial waste collection phase of the glass recycling process which is undertaken by the three categories of suppliers to the Defendant. These various factual circumstances suggest that the glass delivered to the Defendant is not waste, including on the assumption that it was waste in the hands of the clubs and pubs where it is generated. These various considerations in relation to the suppliers and the Defendant suggests that the used glass should not be classified as "waste" meaning surplus or abandoned at the Defendant's facility.
5. He submitted that, although her Honour was dealing with a proper understanding of the definition of "a waste or resource recovery facility" (not the definition engaged for consideration in these proceedings), her Honour's consideration of how the word "waste" was to be understood was common between the proceedings before her Honour and those with which I was dealing (albeit in the context of the definition of "a waste or resource transfer station").
6. This topic was also addressed in the Company's Supplementary Written Submissions in the following terms: "Waste" 17 The Court has asked how the meaning of "waste" and "resource" was relied upon and/or addressed below in oral or written submissions. 18 The Council's written submissions before the Commissioner extracted a definition of "waste" at [38] which, as now conceded, was the incorrect definition of waste. It was a definition relied upon by the Council17. As a result, the Commissioner found that the current use was as a "waste or resource transfer station" (Reasons at [85]‑[86]) without regard to the applicable definition of "waste". 19 The applicant's written submissions below at [31] made the submission that the disposal of waste from the subject premises be viewed with caution and not be confused with the core use of the purchase of metals or items containing metals (which may at times be accompanied by other materials which are disposed of as waste). 20 The Council submitted that the activities at the premises involve the processing and recycling or repurposing of "waste" items such that "the Court could be satisfied that the applicant carries out a business that is properly characterised as a waste or resource management facility." 21 Relevantly, the applicant in opening submissions noted the word "waste" was "bandied about repeatedly", submitted that every industrial business generates waste requiring waste to be collected and removed but that that waste should not be conflated with a dominant activity which generates income for a business. 22 In oral closing submissions below the Transcript records several submissions of the Council as to a conclusion that the use of the premises is properly characterised as a "waste or resource transfer station" but apart from reciting the definition of a "waste or resource transfer station" and an acknowledgement that the reference to waste materials or resources is broad, there is no analysis by the Council of the discrete term "waste" and no analysis or particular reliance, as appears to be conceded, on the proposition that that the applicant was dealing with a "resource". 23 The applicant's oral closing submissions squarely addressed the question of whether the materials purchased are waste or valuable goods or materials which are not waste following which the Commissioner demonstrates an understanding of the submission made by the applicant differentiating waste going into a landfill and metal scraps / items received by the applicant upon payment to those suppliers of metal: COMMISSIONER: So, you're seriously saying that the goods that are received on site are not waste? WEINBERGER" …I guess the question is whether those materials are waste or not. COMMISSIONER: Anyway, go on. The definition of waste that the council is relying on was from the POEO Act so did you want to refer to that in your submission? WEINBERGER: … Yes, I don't cavil with that definition of waste and that the Act is helpful to define it but the point that I'm making about the waste or resource management facility is that there could be a range of different types of waste or resource management facility … 24 In the above circumstances, it is apparent that the meaning of "waste" was in issue and was a matter which the Commissioner was bound to resolve. She did not do so. She was also led into error in respect of the definition of waste. 25 For the reasons given in the applicant's Reply and oral submissions on waste, both the definition of waste and the requirement to resolve the issue of whether the materials in the applicant's hands were waste, were material errors in the Commissioner's Reasons.

The Council's submissions on the second element of Ground 1

1. The Council's submissions to the Commissioner on this point were summarised at [67] to [70] of her decision: 67 The Council submits that the description of the current use of the Premises by Shah is not for the purpose approved by the 1979 development consent, but is instead for the purpose of a waste or resource transfer station. The activities described are "the purchase and sale, gathering and sorting of ferrous and non-ferrous material scraps and copper to export overseas", and "the scrap metal is sold to metal foundries and other businesses which have a need for the metal". 68 "Waste" is not defined in the EPA Act, but the Protection of the Environment Operations Act 1997 defines waste as follows: waste includes - (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. 69 A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. 70 The Council submits that, based on the current activities on the Premises and the definitions of "waste or resource transfer station" and "waste or resource management facility", the Court can be satisfied that Shah is carrying on a business that is properly characterised as a "waste or resource transfer station". The Council points out that there is nothing in the definition of "waste or resource transfer station" or "waste or resource management facility" that excludes the purchase or the sale of the waste or resource.
2. However, Ms Hammond summarised the Council's position in her written submissions to me at paragraphs [50] to [66] (footnotes omitted): 50 The nature of the Appellant's use was not controversial in the proceedings below. The Commissioner considered the evidence regarding that use in her Decision at [36]-[40], summarised as follows: − customers transport metal and other waste to the premises; − the use processes around 20 tonnes of scrap metal each week, with the scrap metal sorted and then sold to metal foundries and other businesses; − the use process around 3-4 tonnes of other materials such as batteries or tyres each weekday (across the 6 weekdays in operation, that equates to equates to 18-24 tonnes of other materials); − processes include stripping plastic off wire and then sorting, placing and exporting the metal material; − disposal of waste. 51 The Director of the Appellant gave evidence that the business "involves the purchase and sale, gathering and sorting of ferrous and non-ferrous metal scraps and copper to export overseas". Mr Bull, the Appellant's expert, said that the use involved the purchase of metals and sorting that metal into type, and processes such as stripping plastic off wire, then placing that metal into containers for export. The evidence before the Court was that scrap metal and other waste was transported to the premises by customers who parked in the area marked on the approved plans for car parking (adjacent to Stubbs Street), and unloaded the materials by throwing them into skip bins. The evidence was that this activity in the car park caused significant noise impacts to neighbours. 52 In the Statement of Facts and Contentions in Reply the Appellant described the nature of the current use and Council accepted that description, as follows: a. the purchase and sale, gathering and sorting of ferrous and non-ferrous metal scraps and copper to export overseas; and b. the scrap metal is sold to metal foundries and other businesses which have a need for the metal. 53 The Appellant conceded below that no manufacturing takes place on its premises. 54 The Appellant submits that the Appellant argued below that the use of the premises was not for the purpose of a "waste or resource transfer station" because the metal is not waste, and cites Mr Bull at [35] of the expert joint report (AS at [39]). Mr Bull's opinion does not assist, as it fails to appreciate the respective definitions sitting under the umbrella of the definition in the Standard Instrument (Local Environmental Plans) Amendment Order 2011 of "waste or resource management facility". 55 A "waste or resource management facility" is defined as any one of "resource recovery facility", "waste disposal facility", "waste or resource transfer station", or "a building or place that is a combination of any of those things". As Council submitted below, the suggestion that a "waste or resource transfer station" is akin to a landfill where people bring their waste to dispose of it for a fee would not be accepted. Such a place is a "waste disposal facility". 56 The definition of a "waste or resource transfer station" is as follows: Waste or resource transfer station means a building or place used for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport. 57 The elements of the definition may be broken down as follows: 1. use for the collection of waste material or resources; 2. transfer of waste material or resources; 3 may include: (a) receipt; (b) sorting; (c) compacting; (d) temporary storage; (e) loading or unloading onto or from road or rail. 58 The definition contemplates the collection and transfer of waste or resources. All of the elements of the definition were occurring as part of the current use of the premises. 59 For those reasons, the Commissioner did not err in concluding that the Appellant's use "squarely falls within the definition of "waste or resource transfer station", and her decision was reasoned and considered. 60 The Appellant seeks to draw assistance from Pain J's analysis of the definition of "waste" in Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49. That decision does not assist the Appellant as it concerned different factual and legal context. That case concerned the meaning of "waste" for the purposes of the definition of "resource recovery facility" under the Infrastructure SEPP. There was no definition of "waste" in that SEPP and Pain J dismissed the submission that the definition in Schedule 3 to the EPA Regulation should be applied: Glass Recover at [42]. 61 Here, the Commissioner was concerned with the meaning of "waste" for the purposes of the definition of "waste or resource transfer station" under the Transport and Infrastructure SEPP. As-at the date that the Commissioner made her decision "waste" was defined in the Transport and Infrastructure SEPP, as having "the same meaning as in Schedule 3 to the EPA Regulation 2000". 62 The definition in the EPA Regulation 2000 was 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. 63 Regrettably, that definition was not drawn to the Commissioner's attention. However, if it had it been, it would have reinforced the Council's position and the Commissioner's decision. It confirms Council's submission, which was accepted by the Court, that the definition of waste does not preclude its sale. 64 The Commissioner determined that the current use for scrap metal receipt, processing and transfer falls within the definition of "waste or resource transfer station" and clearly considered that the metal materials were either "waste or resource". That decision was made on the basis of findings of fact regarding the nature of the current use, and her analysis of the definition, and reasons were given. The Court would not find that there was any error in the Commissioner's determination that the current use is as a "waste or resource transfer station". 65 The Court would also reject the submission that the current use was within the scope of the 1979 Consent and that the Commissioner erred in finding that it was not. 66 The Commissioner gave reasons at [82]-[84]. She determined that the current activities were not a use for the purpose of a foundry and therefore not authorised by the 1979 Consent. Given the nature of the current use and the Appellant's concession that nothing was being manufactured on the premises, that finding was plainly open to the Commissioner. The submission made by the Appellant at AS [34] that the proper characterisation of the use is "metal manufacturing" is not available on the evidence and would not be accepted.
3. This topic was also addressed in the Council's Supplementary Written Submissions in the following terms: "Waste or resources" 20. The definition of "waste or resource transfer station" means "a building or place used for the collection and transfer of waste material or resources…". The definition contemplates that the materials can be either waste or resources, and there is no need to split the collective. There was no need for the Commissioner to distinguish between "waste" and "resources". If there is value in the end product, irrespective of whether waste is also produced (which was admitted), then of course it must be a resource. 21. The Stop Use Order the subject of the proceedings requires the appellant to remove "all waste materials/items and stockpiles being stored at the premises associated with the use of the premises as a waste or resource transfer station and dispose of at an appropriately licensed waste facility". 22. Council in its written submission below set out the definition of "waste or resource transfer station" and the POEO Act definition of "waste", referred the Court to the appellant's evidence of the activities undertaken at the site, and concluded that "the activities involve the processing and recycling/repurposing of waste items. A similar submission was made orally. 23. However, Council did not limit its case to only "waste" and emphasised in oral submissions that the definition extended to both waste and resources: "the reference to waste materials or resources is broad. … the definition is not only concerned with waste but it's also concerned with resources." 24. The appellant's submissions on "waste" below focused on the fact that the appellant operated a business that generated income. The appellant's expert opined that, "unlike waste facilities, they purchase the metals and do not charge a fee for disposal". The appellant submitted that the "disposal of waste from the Premises must be viewed with caution in circumstances where it is not a core use of the Premises for the purchase and sale of materials". 25. Council submitted that there is nothing in the definition of "waste or resource transfer station" that excludes the purchase or sale of the waste or resource. The Commissioner accepted that submission. 26. While the Commissioner was not taken to the applicable definition of "waste" in the Environmental Planning and Assessment Regulation, that definition does not preclude a substance from being waste merely because it is sold or intended for sale. It is consistent with Council's submissions and the Commissioner's decision. 27. Therefore, even if the Court finds that the Commissioner erred in not considering the correct definition of waste (which is not conceded), that error was not material to the decision ultimately made by the Commissioner, such that there was a realistic possibility that the decision could have been different. 28. The Court would find that there was no realistic possibility that the decision in fact made could have been different had the Commissioner's attention been drawn to the correct definition of "waste". That is because the definition of "waste or resource transfer station" contemplates that the materials can be either "waste or resources" and there was no need for the Commissioner to determine which. As Council submitted below, the definition is broad, and is concerned with both waste and resources. Any error in not considering the correct definition of waste is, therefore, not material to the Commissioner's decision and not vitiating.

The Company's reply submissions on the second element of Ground 1

1. This topic was addressed in the Company's Supplementary Written Submissions in Reply in the following terms: "Waste" 13. Contrary to RFS [20] there was a need for the Commissioner to distinguish between "waste" and "resources" because of the "commercial purposes" of the end product. 14. Additionally, as the terms of the Stop Use Order, RFS [21], required the appellant to remove all waste materials/items stored at the premises, the Commissioner was bound to determine the meaning of "waste". 15. Had the Commissioner turned her mind to the distinction between "waste" and "resource", she could and should have done more than simply record the definition of "general industry" encompassing "industrial activity", referenced in her Reasons at [15], and meaning inter alia "altering", "dismantling", "processing", "recycling", "adapting" "any goods, substances… products or articles for commercial purposes, and includes any storage or transportation associated with any such activity". 16. The RFS submissons on waste at [22] - both its oral and written submissions concluding that "the activities involve the processing and recycling/repurposing of waste items" ‑ underline the issue of "waste" being squarely a matter put before the Commissioner, not only by the appellant, AFS [23], but also by the respondent. 17. This confirms AFS [24], that the meaning of "waste" was in issue and was therefore a matter which the Commissioner was bound to resolve. The Commissioner did not do so, and in fact could not do so with the wrong definition of waste before her. 18. Contrary to RFS [27]‑[28], the error in not considering both the meaning of "waste" and the relevant definition of waste were material errors which vitiated the Commissioner's decision.

Consideration of the second element of Ground 1

1. I again note that this basis upon which the Company now founds its appeal against the Order is one which was not advanced before the Commissioner in the fashion now pressed and one which, therefore, the Commissioner did not deal. In these circumstances, although for the reasons which follow, I am satisfied that the Company has made out this basis for appeal, there is no possible basis upon which the Commissioner could be criticised in her decision‑making process.
2. Indeed, it is to be observed that the decision of Pain J in Glass Recovery Services was not the subject of any submission made below to the Commissioner. A search of the transcript of those proceedings confirms that no such submission was made by either party to the Commissioner and no mention was made of Pain J's decision in the written submissions advanced below.
3. Although the decision by in Glass Recovery Services is not on all fours on the broad issues requiring determination here, nonetheless, that with which she dealt in her consideration of what did or did not fall within the concept of "waste", was for the purposes of what might be regarded as an allied statutory use under the same definitional umbrella and, therefore, strict considerations of comity are not formally engaged, I am satisfied, nonetheless, that the reasoned analysis which her Honour brought to bear on how the term "waste" is to be understood is relevant and persuasive. I am certainly not satisfied that her Honour was clearly wrong in the understanding of the definitional element she was required to consider for the purposes of deriving a conclusion as to whether the material dealt with in those proceedings constituted "waste". Indeed, I am satisfied that not only should I give significant regard to her Honour's conclusion on this point, but I am also satisfied that her conclusion was the correct one to be drawn.
4. Therefore, on the basis of the fact that the material with which the Company deals at the site is not waste (and noting the matters which I have set out at earlier as matters with which I am expressly not dealing), it must be that this element of Ground 1 is established, and the Company's appeal must succeed with the amended Order made by the Commissioner being aside.

Ground 1A

1. It is to be noted that Ground 1A advanced what was said to be a jurisdictional defect in the Commissioner's exercise of power, albeit a defect that was not based on any submissions advanced to the Commissioner and where, if I upheld this ground of appeal, there could be no criticism of the Commissioner's decision‑making process implied as she had not been asked to address the proposition which underlay this ground of appeal.
2. In her judgment, at [10], the Commissioner reproduced a diagram depicting what she understood to be the area which was the subject portion of the premises within the Company's lease and a second area, along the western boundary of the site where the Company has a shared access way. That diagram was reproduced from the Joint Expert Report of Mr P Bull, the Company's town planning expert before the Commissioner, and Ms B Mould, the Council's town planning expert before the Commissioner. That report is in evidence before me in Exhibit C, Tab 15, folios 618 to 630. The diagram (a clearer version in the report than the version reproduced in the Commissioner's judgment, but, nonetheless, the same diagram) is reproduced as Annexure A to this decision. It was the agreed position of the experts that this diagram accurately represented the portion of the site over which the Company had leasehold occupation rights (whether to the exclusion of others (as within the orange line) or on a shared basis (as within the blue‑striped shared access portion along the western boundary of the site)). As can be seen from this diagram, there is a rectangular, unmarked white area in an indentation in the western boundary of the orange‑marked area and between that orange‑marked area and the blue‑striped shared access way area.
3. The lease between the Company and the owner of the site is in evidence before me at Exhibit B, Tab 10, folios 193 to 239. This lease describes, at folio 198 that the premises which are the subject of the lease are to be described as: Part Folio identifier 100/DP629887 known as 4 Stubbs Street, Auburn and including right of carriage way, portion of driveway and exclusive yard and car space as shown in Annexure herein.
4. It is to be observed that the diagram referred to as being Annexure A to the lease is not included in the documents in evidence before me, despite it being referred to in the lease. In this context, it is to be noted that the lease documents in evidence before me were in evidence before the Commissioner but, as is presently the position for this appeal, Annexure A to the lease was also not in evidence before the Commissioner.
5. The position that is now raised on behalf of the Company (as a subsidiary matter relevant to whether, if Ground 1 was to be upheld, I could rectify the Commissioner's order (assuming there were no other errors arising from the Commissioner's judgment warranting it being set aside)) was that the absence of the diagram in Annexure A to the lease meant that I could not be certain whether or not the white indentation earlier described was or was not part of the premises encompassed within the scope of the lease (whether on an exclusive occupation basis or on a shared‑use basis being, in Mr Lancaster's submission, irrelevant for present purposes).
6. In this respect, I note that Mr Lancaster responded to a question from me agreeing that, if this was the only legal defect I found with the Commissioner's decision, the matter would need to be remitted to be dealt with, but that that remitter would not be one which mandated that the matter remitted to a different commissioner.
7. Although, as earlier explained, the Council did not object to leave being granted to the Company to rely on Ground 1A, I have concluded that it is not appropriate to permit this ground to be relied upon. There are four reasons why this is the position, reasons which can be explained succinctly. 1. First, the Company is bound by the forensic decisions in the way its representative conducted the case for the Commissioner (Metwally); 2. Second, given my conclusion that the order is invalid for entirely separate and unrelated reasons, there is no functional utility in addressing Ground 1A; 3. Third, Ground 1A is founded on a premise which, to a considerable extent, is contrary to the agreed position adopted by the town planners in the proceedings before the Commissioner as set out above; and 4. Fourth, the only activities which the Company could undertake in compliance with the Order (were it to remain obliged to do so) would be those it could lawfully undertake ‑ that is, those activities necessary to satisfy the Order which could be on the portion of 187 parramatta Road, Auburn, lawfully occupied by the Company. This limitation means that there is, in my assessment, no jurisdictional impediment to the Commissioner having made the order in the terms which she did.
8. Ground 1A is, therefore, rejected.

Ground 5

1. As can be seen from the terms of Ground 5 as earlier set out, this ground proposes that the Commissioner's exercise of the discretion with which she was undoubtedly vested to set a compliance period within which the Company had to comply with the amended Stop Use Order was unreasonable. It is to be noted that the addressing by the advocates of Ground 5 did not occur until toward the conclusion of the hearing before me, when I prompted the advocates that they had not done so ‑ them then doing so but briefly. For present purposes, it is sufficient to note that the parties relied on their written submissions in this regard.

The Company's written submissions on Ground 5

1. The written submissions for the Company on Ground 5 were in the following terms: 54 In the alternative to Grounds 1A and 1, the Appellant submits that the Commissioner erred in fixing the time for compliance with the modified consent orders in that the result of the order is unreasonable or plainly unjust. 55 The development control order issued by the Respondent on 22 December 2021 specified a period for compliance of two months (22 February 2021). In the circumstances, it was legally unreasonable for the Commissioner to shorten the period for compliance to 28 days. 56 The Commissioner refused the period of six months sought by the Appellant to seek development consent for the use on the basis of noise impacts. Given that it was the noise impacts of the use, rather than the use itself, that was the reason for exercising the discretion to give an order, the Commissioner ought to have considered other regulatory options available to the Respondent that could have reduced that impact short of ceasing the use altogether. 57 The Appellant had argued that the Respondent could have regulated the noise under the Protection of the Environment Operations Act 1997. The options available to the Respondent included issuing a prevention notice under that legislation. The Commissioner dismissed that argument in Reasons at [93]. 58 A regulator such as the Respondent has a discretion as to whether and what form of regulatory action it will take in a particular case. The point is not that the availability of one option precludes the regulator from taking another option. However, in exercising that discretion, the regulator ought to consider the effect of each available regulatory option. In considering whether a stop use order was appropriate, it is relevant to consider the effect of such an order on the Appellant's business and other regulatory options that would reduce the noise impacts without completely terminating the Appellant's business at the premises, such as a prevention notice. 59 The Appellant contends that the Commissioner erred at law in failing to consider the appropriateness of a stop use order in the context of other regulatory options available to the Regulator. 60 In the event that Ground 5 is upheld but Ground 1 is not, there should be an exclusionary remitter. The ground is akin to a procedural fairness ground in which an exclusionary remitter may be ordered.

The Council's written submissions on Ground 5

1. The written submissions for the Council on Ground 5 were in the following terms (footnotes omitted): 67 The Appellant submits that the Commissioner erred on a question of law by failing to exercise her discretion to extend the timeframe for compliance with the Order to 6 months because on the facts her decision to require compliance within 28 days was unreasonable or plainly unjust. 68 Given the time for compliance in the original Order issued by Council was 22 February 2022 and the hearing was heard in August 2022, any decision of the Court to maintain the Order necessarily required an amendment to the date for compliance. The Commissioner had a broad discretion to impost a compliance date as she saw fit. 69 The Appellant sought a 6 month timeframe to comply with the Order, and the reason it gave was to enable it sufficient time to seek development consent for the permitted use as "waste resource or transfer station". This was the sole reason given and no oral submissions were made by the Appellant in relation to the 6 month period. 70 No particulars are provided in the Summons to explain the alleged legal error. In the AS, it is suggested that the Commissioner should have turned her mind to "other regulatory options" that Council had available to reduce the noise impacts. It is also suggested that the Commissioner should have considered the effect of such an order on the Appellant's business, although no submissions to that effect were made below to support the request for a 6 month timeframe. 71 The Commissioner's decision to fix the time for compliance to 28 days was open to her as a matter of discretion and based on the facts found by her. A significant factor that the Commissioner took into consideration was the noise impacts of the use of the premises on neighbouring businesses. The Commissioner considered and took into account the evidence of noise complaints from neighbours and the evidence of Council's investigating officer who inspected the premises, at [47]-[53], and [94]-[96]. The Commissioner also took into account the fact that there was no evidence that the Appellant had taken any steps to mitigate its impacts, and there was no consent in place to regulate the current use of the premise.31 Those factual findings were open to her on the evidence and cannot be disturbed on appeal. 72 The Appellant submits that the Commissioner made a legal error on the basis that the exercise of her discretion was unreasonable. The Court would not lightly interfere with an exercise of discretion. The Court must be satisfied that the decision meets the high threshold of legal unreasonableness. A decision will be vitiated by legal unreasonableness only where it 'lacks an evident and intelligible justification': Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. 73 The Commissioner's decision to impose a 28 day timeframe for compliance was not legally unreasonable, rather, it was well reasoned and based on findings of fact that provided a proper basis for her decision. It was a matter for the Commissioner to weigh the desire of the Appellant to seek development consent versus the ongoing noise impacts on neighbours that were not being mitigated. There was no obligation for the Commissioner to turn her mind to possible alternate regulatory action. The evidence provided a proper basis for the Commissioner's decision and it could not be described as unreasonable or unjust, let alone unlawful. 74 It is suggested that the Commissioner's exercise of discretion is "akin to a procedural fairness ground". This bare assertion is not understood as the basis for the submission is not explained, and therefore it cannot be responded to.

The Company's reply submissions

1. The Company's reply submissions did not address Ground 5.

Consideration

1. Although not necessary to be addressed because of my earlier conclusion as to the fundamental defect in the characterisation of the Company's activities of the site require the Order to be set aside, for completeness it is appropriate that I address this ground because it is the only substantive ground now pressed before me which is critical of the Commissioner's decision‑making process and the conclusions which she reached (the other substantive aspects I have earlier addressed, being ones where there can be no basis for criticism of the Commissioner given the way the parties' cases were advanced during the hearing before her).
2. The Commissioner had the benefit of a site inspection, and she also had the benefit of evidence given on behalf of the Council concerning the acoustic impacts that were arising from the Company's activities. In a factual evaluative process, she concluded, from all of the evidence that was before her, that a shorter period of time than that which had been originally sought to be imposed by the Council was appropriate to be ordered as the period within which the Company was obliged to cease its use of the premises. In doing so, she expressly rejected the proposition advanced on behalf of the Company that the Company should have a six‑month period rather than the shorter period originally proposed in the Order as served on the Company, and from which it had appealed to the Court.
3. The bar for demonstrating that the Commissioner's decision to apply a 28‑day period within which cessation of the Company's activities and the removal from the site of the material with which it was dealing was legally unreasonable, faces a high hurdle to be overcome (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63). Given the nature of the factual evaluation which the Commissioner undertook, and a proper reading of the passage from her decision where she addressed the question of the appropriate period to be imposed for compliance with the Order, there is no proper basis upon which I could conclude that legal unreasonableness had been established in her reaching the conclusion that derived from the factual evidence that a shorter period for compliance was appropriate to be imposed in her redetermination of the operative period of the amended Order.
4. Had it been necessary to determine Ground 5, I would have dismissed this ground.

Costs

1. For appeals pursuant to s 56A of the Court Act, costs ordinarily follow the event. However, s 98(1) of the Civil Procedure Act, earlier set out, permits me to "otherwise order" if circumstances are appropriate so to do. I am satisfied that it is, here, appropriate to make a different costs order for the reasons which follow.
2. As the Company has been successful in this appeal on a basis not fully or adequately argued before the Commissioner, and in circumstances where the course of the hearing before me involved, in a fashion divorced not only from the hearing before the Commissioner but also in a fashion which differed to some considerable extent from that which might reasonably have been expected by the Council in its preparation for this hearing (including that leave was given for Ground 1A to be argued - unsuccessfully - before me although it was not advanced before the Commissioner), I am satisfied that the appropriate costs order to be made is that there be no order for costs of this appeal, with a view to each party bearing their own costs of this appeal.
3. However, given that the question of costs was not argued before me, it is appropriate that I provide the parties (particularly the Company) the opportunity to consider whether some alternative costs order would be sought in the proceedings. To this end, my orders provide that there be no order for costs of these proceedings unless my Associate is advised, within 14 days of my making of the orders disposing of these proceedings, that an alternative costs order is sought. If my Associate is so advised, the question of whether or not such alternative costs order should be made will be addressed on the basis of short written submissions to be provided to me, without further oral argument.
4. Any submission on behalf of the initiating party seeking an alternative costs order is to provide written submissions of not more than four pages in A4 size, 12‑point Arial font at 1.5‑line‑spacing within two weeks of notifying my Associate, and the other party, of the alternative costs order sought. The other party is then to provide my Associate, and the initiating party, with any submissions in reply (those submissions to be confined to the format and length applying to the initiating party seeking that different costs order). These submissions are to be provided within two weeks of the receipt of the submissions seeking the different costs order. Finally, the initiating party seeking the different costs order may file and serve submissions in reply within a further two weeks. Any such reply submissions are to be subject to the same format requirements but limited to a maximum length of two A4 pages.
5. As I had advised the parties that I would be on leave until toward the end of May 2023, my decision on any alternative costs order, if one is sought, will be dealt with upon my consideration of the written submissions after my return from leave.

Orders

1. It follows from the foregoing that the orders of the Court are: 1. The appeal is upheld; 2. The Stop Use Order served on the applicant by the Respondent (as amended by the orders of the Court made on 30 September 2022) is set aside; 3. There is to be no order for costs with a view to each party bearing their own costs of this appeal unless a party notifies my Associate within 14 days of the date of these orders that that party seeks a different order as to costs; 4. If my Associate is advised that an alternative costs order is sought, the initiating party seeking the alternative costs order is to provide written submissions, of not more than four pages in A4 size, 12‑point Arial font at 1.5‑line‑spacing, within two weeks of that party's notification to my Associate and the other party of the alternative costs order sought and the basis for it. The other party is then to provide my Associate and the initiating party with any submissions in reply (those submissions to be confined to the format and length applying to the initiating party seeking the different costs order). These response submissions are to be provided within two weeks of the receipt of the submissions seeking the different costs order. Finally, the initiating party seeking the different costs order may file and serve submissions in reply within a further two weeks with such reply submissions being subject to the same format requirements earlier set out but limited to a maximum length of two A4 pages. The question of whether any different costs order, if sought, will be made will be dealt with on the papers; and 5. The exhibits are returned.

Annexure B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2023