Finding on issue 4(b)
128 In Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, Glass JA said (at 161):
" Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged ."
129 In Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, Meagher JA said (at 409-10):
" Notwithstanding the principles laid down in Foodbarn it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being any independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is 'ancillary to', or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses … illustrate the point: they show that a 'convenience store' and a petrol station are two independent uses, although the former is the ancillary to the latter. This is a fortiori the case where the 'ancillary' use has pre-dated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not 'ancillary' to any other use. "
130 In my view, applying Foodbarn and Baulkham Hills Shire Council v O'Donnell, there have been three separate existing use rights.
131 The first existing use is an "extractive industry" as described above, which involves the "winning of extractive material". The purpose of this use was to extract material for commercial gain.
132 The second existing use was for brickmaking, which involved a "dry pressing" process. As accepted by the Council, this use had the benefit of existing use rights prior to its abandonment in about 2000.
133 The third existing use is the crushing and blending of clay and shale, which is appropriately categorised as a use for an "industry". This use incorporates the crushing and blending of imported clay and shale, as well as clay and shale extracted from ML1. I find that this crushing and blending is a separate independent use. I make this finding because the physical activity of the crushing and blending of clay and shale has continued for the relevant period. Consistently with my position regarding the physical use for extraction of material, the existing use rights continue. The existing use rights are not dependent upon the eventual use of the products created by the use.
134 As a matter of fact and degree, I find that the use for crushing and blending is not ancillary to the use for brickmaking. As appears from the evidence below, the crushed and blended material was also used for road base and fill. The road base and fill was blended using both extracted material and imported material (see par [143] and par [146] below).
135 I also find, again as a matter of fact and degree, that the use is not ancillary to the use for an "extractive industry". To the extent that the respondents rely upon condition 4 of the development consent, I do not accept that the question of whether existing use rights apply should be determined by what the Council believed to be the case. In any event, as noted in par [28] to par [30] above, the respondents specifically asserted that the consent being sought was ancillary to the quarry operations insofar as it used some idle machinery, which had the predominant purpose of crushing the quarried material for brickmaking purposes. The application to the Council did not indicate that the crushing and recycling of waste products would be blended with the extracted material. In my opinion, I can rely upon these documents because they are not being used to interpret the development consent, but rather to determine whether there are existing use rights. That is, they are being used to make a factual determination as to what was occurring on the land at the relevant time, and what the Council understood to be occurring, when granting the consent. In my view, this is quite different to the interpretation of the development consent itself. I conclude, however, that the importation and blending of clay and shale was at all relevant times an industry, and it is also protected by s 109(1) of the Act.
136 Having established the three separate uses, and finding that the use for brickmaking has been abandoned, there are two further questions to be decided.
137 The first question is whether the current crushing and blending of imported waste materials is subject to existing use rights. As noted above, this activity is authorised by the 2003 development consent which has not been challenged in these proceedings. Accordingly, I find that it is unnecessary and improper to decide this question.
138 The second question is whether the current blending of imported waste materials with the extracted materials is subject to existing use rights. In my opinion, it is not. It is a separate activity using separate materials to those that were physically used on the property prior to about 2000.