Council of the Shire of Mulgrave v Peterkin & Ors [1993] QPEC 49

) ) I ;,--- -- • .._., '-'...,_ f IN THE PLANNING AND ENVIRONMENT COURT HELD AT CAIRNS QUEENSLAND Before Row DCJ P & E Application No. 3 of 1993 (Cairns Registry) [Shire of Mulgrave v. Peterkin & Ors.] BETWEEN: COUNCIL OF THE SHIRE OF MULGRAVE Applicant - and - ANTHONY GEORGE PETERKIN & SHEILAGH JOYCE PETERKIN First Respondents - and - ' ROBERT JOHN GRIFFITHS & PAMELA GAI GRIFFITHS Second Respondents ) REASONS FOR JUDGMENT Judgment delivered: 29/07/1993 Catchwords: Counsel: Solicitors: Hearing Date(s): J J Haydon for the Applicant KT McCreanor for the Respondents MacDonnells for the Applicant McIntyre Stower & Bovey· for the Respondents 29 July 1993 -- 1 of 6 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT CAIRNS QUEENSLAND BETWEEN: p & E Application No. 3 of 1993 (Cairns Registry) COUNCIL OF THE SHIRE OF MULGRAVE Applicant ANTHONY GEORGE PETERKIN & SHEILAGH JOYCE PETERKIN First Respondents ( AND: ROBERT JOHN GRIFFITHS & PAMELA GAI GRIFFITHS Second Respondents 29th July 1993 - Cairns REASONS FOR JUDGMENT - ROW D.C.J. Delivered the 29th day of July, 1993 - Cairns By application dated 15 December 1985, the second respondents applied to the applicant for the rezoning of the subject land by excluding the subject land from the existing zone, and including the land so excluded in the Special Facility C C r"- ( Retail and Wholesale Nursery and Landscape Supplies) Zone. ~, The application as lodged with the respondent described the desired use to be made following rezoning, as Nursery and Landscape supplier. The nature of the machinery to be used was stated to be trucks, loaders, sprinkling equipment. By letter dated 18 February 1986, the applicant advised the second respondents that it approved the rezoning application subject to certain Conditions, including Condition 5 which provided: -- 2 of 6 -- ) ) ) 2 "No manufacture of any product is to take place on the premises." Subsequent to the notification of the decision of the respondent, the second respondents and the applicant entered into what is commonly called, "a rezoning deed." Clause C of the recitals sets out that: "The council approved the said application subject to a number of Conditions particulars of which are set out in the second schedule hereto." Under the terms of the deed the second respondents entered into certain covenants. The second schedule of the rezoning deed sets out Condition 5 of the approval. By an originating application filed herein on 16 July 1993, the applicant seeks a declaration that the use currently being made of the subject land is unlawful and prohibited so long as manufacture of any product takes place on the said land and seeks a further order restraining the use of that land for that purpose. A body of affidavit material has been filed identifying the nature and extent of the activity to which objection is taken by the applicant. Whilst there may be some very minor differences between the material filed on behalf of the applicant and that filed on behalf of the respondents there is no doubt that in the preparation of, for example, garden and potting mix, there is a process which entails the mixture of a number of separate components with the end product being something which is different to that of the individual components be it in respect of the garden mix or the potting mix. Evidence as to the manner in which the mixing of products occurs is substantially agreed. Different individual materials are placed together on a flat -- 3 of 6 -- 3 surface and then mixed by the use of an end loader to produce a new product for sale under a name which differs from that of the separate original material. The affidavits before me establish that garden mix has top soil added to the other materials whereas potting mix has not. The affidavits show that one starts off with separate ingredients then by a mixing process one has separate products. The issue before the Court is whether the activity that is the subject of the originating application is within the meaning ( of "manufacturing" as set out in Condition 5, and whether in such circumstances it is an unlawful activity carried on the subject land contrary to the approval for rezoning and the conditions attached thereto. It is accepted that the rezoning was approved subject to conditions and that those conditions are part and parcel of the approval. Any use, part of which is contrary to the approval would not, if so found, be lawful having regard to the terms and conditions of the approval. C C The word "manufacture" or any derivative thereof is not specifically defined in the relevant planning scheme of the (, applicant. In interpreting the provisions of clause s of the approval the word "manufacturing"; to be given its ordinary meaning being that based on ordinary parlance. The phrase, "no manufacturing of any product", within its context is to be given its ordinary meaning. Whilst references to dictionary meanings and authoritative statements by courts in other cases provide some guidance or assistance, the prime test remains: what is the -- 4 of 6 -- ) > 4 ordinary meaning of the word "manufacturing" as used in Condition 5. It was submitted on behalf of the respondents that the process was an integral part of the use which was approved within the Special Facility Zone being an integral part of retail and wholesale nursery and landscape supplies. It was further submitted that the restriction of the meaning of the word "manufacture" or "manufacturing'' consideration would be adverse to to the process under an integral aspect of the proposed development. The submissions, in my view, overlook the ') fact that what was approved in relation to the rezoning to the Special Facility Zone was approved subject to certain nominated conditions which included Condition 5. In such circumstances, it is necessary to examine in detail the requirement of Condition 5 giving the words therein their ordinary meaning. Dictionary definitions, as provided by the Oxford Dictionary and the J Macquarie Dictionary, are indicative that the process of manufacturing involves a mixing or combination of a number of ,\ components where the end product or process is something new or different to the various components. That approach appears to accord with decisions in, for example, ACR Trading Pty. Ltd. v. Fat-Sel Pty. Ltd. (1987) 11 N.S.W.L.R. 67 and Federal Commissioner of Taxation v. Jack Zinader Pty. Ltd. 78 C.L.R. 336. These decisions, however, provide only a guideline as to the proper interpretation that is to be given therein. Bearing in mind the dictionary definition and the decision above referred to it is important to have regard to the context in which the words "manufacturing" is found in the particular relevant -- 5 of 6 -- 5 condition. "Manufacturing" is a word of general application and is not limited in any way by the context in which it appears. The reference is, "no manufacturing of any product". The context in which it appears is one of wide application and no specific limitation is provided within that context. The evidence on behalf of the applicant and on behalf of the respondents clearly establishes that the end product in relation to potting mix and garden mix is something new and independent from the various components which are utilised for the purpose ( of producing that end process. Manufacture in its ordinary meaning in this context incorporates the making of an end product by the means of labour whether by machinery or otherwise whereby the end product is something different to the original article or material. In those circumstances I am satisfied that the use for the purpose of providing potting mix and garden mix is within the context of the term "manufacturing" as set out in Condition 5 of the approval. the approval. Such a use is prohibited by Condition 5 of C > C I find that the use of the subject land for the purposes incorporating providing potting mix and garden mix is a use which ( is not within Column 3 of the Table of Zones or Column 4 and is therefore prohibited under Column 5 in the Special Facilities (Retail and Wholesale Nursery and Landscape Supplies) zone. I make a declaration in terms of the originating application. -- 6 of 6 --