Environmental Planning and Assessment Act 1979 Part IV Div 1

Appearances Applicant Mr P C Tomasetti, Barrister

This application is by way of notice of motion seeking determination of a preliminary question of law. The question is whether a development consent granted to the first respondent by the council on 25 February 1985 is a valid and effective consent to use the premises described in the consent for the purposes therein described. The preliminary hearing of this point was sought by all parties on the basis that it may serve to clarify and shorten the main proceedings.

In November 1984, the first respondent lodged with the council a development application seeking consent for a "Change of use from Sheet Metal Rolling to Manufacture of Silicone Seals and Sealing Profiles". The land to which the development application related ("the subject land") is located at 40 Burrabogee Road Pendle Hill.

The council determined the development application by granting consent subject to 15 conditions. On 19 February 1985, notice of the development consent was sent to the first respondent.

At the time the consent was granted, the subject land was zoned 4(a) General Industrial under the Blacktown Planning Scheme Ordinance ("the BPSO"). Under the zoning table in the BPSO, industries other than offensive or hazardous industries could be carried out in zone 4(a) without the consent of the responsible authority. Offensive or hazardous industries were prohibited.

For the purpose of determining the preliminary question of law, it was agreed that the use for which consent had been sought was "industry", and that accordingly the subject land could have been used for that purpose without consent.

It may have been the case that the council was concerned, at the time of considering the development application, that the proposed development may have been an offensive and hazardous industry, and that it sought to avoid that result by granting consent subject to the imposition of a condition, numbered (ix), that the use was to be "... conducted at all times without interference to the amenity of the neighbourhood". I shall return to consider this possibility later, but for the present I proceed upon the basis that the proposed development was for a purpose which did not require development consent.

Division 1 of Pt IV of the Act deals with environmental planning control. Section 76, which is headed "Restriction on development" is as follows:

"76 (1) Subject to this Act where an environmental planning instrument provides that development specified therein may be carried out without the necessity for consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies except in accordance with the provisions of that instrument.

(2) Subject to this Act where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless-

(a) that consent has been obtained and is in force under this Act; and

(b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.

(3) Subject to this Act where an environmental planning instrument provides that development specified therein is prohibited, a person shall not carry out that development on land to which that provision applies."

It is clear from s 76 that the foundation for restriction on development is the relevant environmental planning instrument. It is that instrument which specifies whether or not consent is required for development, or whether development is prohibited.

Thus, under s 76(1), if development is permissible without consent, the only restrictions which must be adhered to are those contained in the environmental planning instrument which applies to the development. Consent is only a prerequisite for a permissible development where it is required by an environmental planning instrument. If consent is required, then, under s 76(2), a person must not carry out the particular development unless consent has been obtained.

How, then, is consent to be obtained? The action which triggers the process of obtaining consent is the making of a development application. A "development application" is defined in s 4 of the Act to be "... an application for consent under Division 1 of Part IV to carry out development".

Section 77 contains the provisions for making development applications. It provides by whom they may be made, what form they are to take, and what information and documents must accompany them. Section 77(3)(a) stipulates that a development application must be made to "the consent authority".

Section 4 relevantly provides that a consent authority "... in relation to a development application, means ... the council having the function to determine the application".

Section 90 sets out the matters which a consent authority shall take into account in determining a development application.

Section 91 provides that a development application shall be determined by the granting of consent, either unconditionally or subject to conditions, or by the refusing of consent.

As I have said, it is the relevant environmental planning instrument which governs whether or not consent is required. In this case, the relevant environmental planning instrument was the BPSO. It came into force in 1968, and, subject to various amendments made in the intervening period, it was in force when the first respondent made the development application in 1984.

Clause 6(2) of the BPSO provided that "the council" as therein defined was to be the responsible authority and to be charged with the functions of carrying into effect and enforcing the provisions of the BPSO. It was accepted, for the purpose of this hearing, that the Council of the City of Parramatta was the responsible authority under cl 6(1). It was the council to which the development application was made, and the council which purported to grant development consent.

Part III of the BPSO related to restrictions on building and use of land. Clause 23, which appeared in pt III, was in the following terms:

"23 Subject to the provisions of Parts IV, V, VI and VII of this Ordinance the purposes -

(a) for which buildings or works may be erected, carried out or used without the consent of the responsible authority;

(b) for which buildings or works may be erected, carried out or used only with the consent of the responsible authority; and

(c) for which buildings or works may not be erected, carried out or used;

in each of the zones specified in Column I of the Table to this clause are respectively shown opposite thereto in Columns III, IV and V of the Table."

As I have earlier mentioned, in the zoning table under the BPSO, in relation to land zoned 4(a) General Industrial, industries other than offensive or hazardous industries were column III uses, that is, they were purposes for which buildings or works might be erected or carried out or used without the consent of the responsible authority. A number of purposes, including offensive or hazardous industries, fell within column V and were prohibited. Column IV was the innominate class. It applied to any purpose other than those permitted by column III or prohibited by column V and required, in respect of any such purpose, the consent of the responsible authority.

In the light of the statutory context, the competing arguments on the question of the effect of the development consent granted to the first respondent may be shortly stated.

Mr Tomasetti, for the council, submitted that the development consent granted by the council has no legal force or effect, in the circumstances where, under the BPSO, the use was permissible without the necessity for any development consent, there being, in those circumstances, no power conferred on the council to grant consent. His argument was that the statutory foundation which enabled or empowered the council to restrict development was to be found in the BPSO, which applied by force of the provisions in the Act. At the time when the council purported to grant consent, the BPSO did not confer upon the council any power to restrict the use of the subject land for the purpose of an industry. Hence it must follow, in this submission, that the purported grant of consent was of no legal effect.

Mr Wilson, for the respondents, submitted that there is nothing in the Act which suggests that the making of a development application and its determination by the council is unlawful in circumstances where the use was permissible without the necessity for development consent. In his submission, there was a valid development application made under s 77 for the purposes of the Act, in respect of which the council exercised its administrative function, that is, it determined that development application under s 91 by granting consent. In the absence of any provision in the Act or the BPSO prohibiting the council from granting consent in respect of development which is permissible without consent, the council validly exercised its administrative function, and, as a consequence, the development consent is valid and has legal effect.

In my opinion, Mr Tomasetti is correct in his assertion that the development consent is of no legal effect.

That follows, I think, from the statutory context. A person will, under s 76, be in breach of the Act if that person carries out development without consent in circumstances where consent is required. The question as to whether or not consent is required is to be determined by having regard to the relevant environmental planning instrument. If consent is required, then it may be obtained by setting in train the process, that is, by making a development application. It is in relation to a development application (which is defined as an application for consent) that a council is empowered to act because it is the consent authority which is invested under s 91 with the power to determine that development application.

If no consent is required to a development pursuant to the provisions of the relevant environmental planning instrument, then a person will not be in breach of the Act if that person carries out that development. If no consent is required, then the council has no function in relation to that development. It is not empowered to grant development consent where no development consent is required. If it purports to do so, as happened in the circumstances of this case, its grant of consent is superfluous and has no legal effect. It is not a development consent under div 1 of pt IV to carry out development.

Mr Wilson relied upon the South Australian case of Wilson & Ors v City of Mitcham & Ors (1986) 61 LGRA 126 to support his submission, but, in my opinion, that case is distinguishable from the present case. In that case, the applicant sought and was granted planning permission for a use which, under the relevant South Australian statute, was one for which planning permission could be granted by the local planning authority. Local residents appealed to the planning appeal tribunal and then to the Supreme Court, arguing before the latter that the applicant for planning permission had the benefit of a statutory protection of continued use and that accordingly no valid planning decision had been made because the local planning authority had no power or need to consider the application for permission. The Supreme Court held that the grant of planning permission was a valid exercise of power.

Here the position is different. The council in the present case has purported to grant development consent for a use which did not require consent by virtue of the relevant environmental planning instrument. It is not a case where consent would be required but for the benefit of the preservation of existing use rights.

I conclude, for the above reasons, that the development consent is not a valid and effectual consent to use the subject land for the purposes described in the development application.

Under the BPSO, an offensive or hazardous industry was prohibited. The phrase "offensive or hazardous industry" was relevantly defined in cl 4 as follows:

"'Offensive or hazardous industry' means an industry which, by reason of the processes involved or the method of manufacture or the nature of the materials used or produced, requires isolation from other buildings ..."

It was submitted by Mr Wilson that the development application may have been made so as to enable the council to determine whether or not the proposed use constituted an offensive or hazardous industry. Mr Wilson submitted that the consent, through the imposition of condition (ix), enabled the proposed development to be characterised as an industry that was not hazardous or offensive. Thus, according to this argument, the council validly exercised its administrative function in granting consent and imposing conditions which made the proposed use permissible.

On the authority of Fatsel Pty Ltd & Anor v ACR Trading Pty Ltd & Anor [No 3] (1987) 64 LGRA 177, I reject this submission. That was a case in which the question of whether the development was prohibited was one of the issues, and that question depended on whether or not the development was an offensive or hazardous industry within the meaning of the relevant environmental planning instrument. That instrument contained a definition of "offensive or hazardous industry" in terms substantially identical to the definition in the BPSO. It was held by the Court of Appeal that the use was for the purpose of an offensive industry. The appellants had argued that the means by which they carried out their industry allowed it to be taken out of the category of "offensive or hazardous". However, the way the appellants conducted their activities within the industry could not, it was held, properly alter either the classification of the industry or the features of the industry which "would require isolation from other buildings" (per Kirby P at 185).

Under the BPSO, an offensive or hazardous industry was prohibited whereas an industry that was not offensive or hazardous was permissible without consent. An industry could have been categorised as either one or the other. If the former, then no development consent could authorise the development. If the latter, then no development consent was required. This situation could not be altered by the way the first respondent carried on its activities within the industry. If the use did not involve any of the elements that could categorise it as offensive or hazardous under the definition in the BPSO then it was not prohibited but it required no consent.

Mr Wilson finally submitted that in the exercise of my discretion I should decline to determine the question of law in the manner sought by the council. The exercise of discretion should take into account that the council purported to grant development consent ten years ago and that the first respondent has been acting in accordance with that consent.

However, the question I have been asked to determine is a preliminary question of law brought before me with the consent of the parties. I have not heard the whole of the case, and the full evidence is not before me. In these circumstances, the exercise of discretion as to whether or not to grant the relief sought by the council in the class 4 proceedings does not arise. My conclusion on the preliminary question of law will not preclude the exercise of that discretion which is more appropriately considered after the full hearing has taken place.

The case should now proceed to a hearing, to be conducted upon the basis of my conclusion on the preliminary question of law, that is, that the development consent granted by the council to the first respondent on 25 February 1985 is of no legal effect.

I direct that the matter be listed before the Registrar for the purpose of setting a date for hearing.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 8 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.