Botany Bay City Council v B.I.G. Transport Pty Ltd

[2006] NSWCA 57

New South Wales

Court of Appeal

CITATION:	Botany Bay City Council v B.I.G. Transport Pty Ltd [2006] NSWCA 57
HEARING DATE(S):	24 March 2006
JUDGMENT DATE:	24 March 2006
JUDGMENT OF:	Handley JA at 1; Ipp JA at 2; Tobias JA at 3
EX TEMPORE JUDGMENT DATE:	03/24/2006
DECISION:	Appeal dismissed with costs
CATCHWORDS:	LOCAL GOVERNMENT – development consent – conditions – consent orders – whether breach – construction of development consent – use of premises – whether premises used for “storage” or other use – distinction between “storage” and “use” of transport vehicles - WORDS AND PHRASES – meaning – “storage”
LEGISLATION CITED:	N/A
CASES CITED:	Auburn Municipal Council v Szabo (1969) 67 LGRA 427 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
PARTIES:	Botany Bay City Council B.I.G. Transport Pty Limited
FILE NUMBER(S):	CA 40530/05
COUNSEL:	A: P. Clay with R. O'Gorman-Hughes R: Alan A Hyam
SOLICITORS:	A: Houston Dearn O'Conner, Burwood R: D C Chambers & Associates, Brighton Le Sands
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40166/97
LOWER COURT JUDICIAL OFFICER:	Pain, NHM

CA 40530/05
LEC 40166/97

HANDLEY JA
IPP JA
TOBIAS JA

Friday 24 March 2006

BOTANY BAY CITY COUNCIL v B.I.G. TRANSPORT PTY LIMITED

Judgment

1 HANDLEY JA: I agree with Tobias JA.

2 IPP JA: I agree with Tobias JA.

3 TOBIAS JA: On 16 June 1978 B.I.G. Transport Pty Limited (the respondent) made an application to Botany Bay City Council (the appellant) for development consent with respect to the property Nos. 11-15 Clevedon Street, Botany (the premises) for what is described in paragraph 5 of the application form as

“Storage & maintenance for our three prime movers & trailers in connection with our carrying business.”

4 On 8 November 1978 the appellant resolved to grant “Town Planning consent” to the application subject to 24 conditions. The formal consent No.78-T-151 (the consent) was issued on 10 November 1978 in which the “Premises” were described as 11-15 Clevedon Street, Botany and which identified as the “Brief Description of Proposal” the “Storage and maintenance of 3 prime movers”.

5 Of primary relevance to the present matter were Conditions 21 and 22 of the consent which were in the following terms:

“21. All work carried out on the vehicles in the form of maintenance is to be conducted only within the building on the subject land.
22. The open areas within the subject land are only to be used for the storage and manoeuvring of company vehicles and cars mentioned in the application form and not for the storage of goods or materials of any other description.”

6 In 1997 the appellant initiated proceedings in the Land and Environment Court against the respondent in which it was alleged that the latter had breached certain conditions of the consent. On 10 September 1997 that court, by consent, made a number of orders of which Order 3 is presently relevant (Order 3). It provided as follows:

“The Respondent is forthwith restrained from breaching Condition 6, 21 and 22 of the Town Planning Consent.”

7 In 2002 the appellant initiated contempt proceedings in the Land and Environment Court alleging that the respondent was in breach of Order 3. The respondent pleaded guilty to the charge and was fined.

8 On 21 February 2005 the appellant filed a Notice of Motion in the Land and Environment Court alleging that the respondent had again breached Order 3 and was thus guilty of contempt. The Statement of Charge was as follows:

“1. The Respondent is alleged to be guilty of contempt of Order 3 made by this Honourable Court in these proceedings and dated 10 September 1997 in that on 2 August 2003, the Respondent disobeyed condition 21 of Town Planning Consent No1. 78-T-151 dated 10 November 1978 in that work was carried out on that day in the form of maintenance to vehicles in the open areas and not within the buildings as required by condition 21.
2. The Respondent is alleged to be guilty of contempt of Order 3 made by this Honourable Court in these proceedings and dated 10 September 1997 in that the Respondent has disobeyed condition 22 of town Planning Consent No1. 78-T-151 dated 10 November 1978 in that the open areas within the subject premises were used for the storage of goods and materials namely containers, equipment for unloading containers and trailers on the following dates:
(a) 19 February 2003;
(b) 4 April 2003;
(c) 9 April 2003;
(d) 14 April 2003;
(e) 5 June 2003;
(f) 26 July 2003;
(g) 9 August 2003;
(h) 15 August 2003;
(i) 20 June 2004; and
(j) 21 November 2004.”

9 As the primary judge found the respondent not guilty of the first charge, and the appellant does not appeal against that finding, it can be put to one side. With respect to the second charge, the appellant’s evidence, which was not in dispute, was that two of its officers observed that in addition to three prime movers and three trailers, the following further “goods and materials” were observed to be stored upon the premises on the dates referred to in the second charge:

“(a) 19 February 2003 – one container on the site;
(b) 4 April 2003 – two trailers, one container and pallets and equipment for unloading containers;
(c) 9 April 2003 – two trailers, and pallets and equipment for unloading containers;
(d) 14 April 2003 – five trailers and pallets;
(e) 5 June 2003 – one trailer;
(f) 26 July 2003 – six trailers and three containers;
(g) 9 August 2003 – eight trailers and five containers;
(h) 15 August 2003 – three trailers;
(i) 20 June 2004 – six trailers; and
(j) 21 November 2004 – five trailers and four containers.”

10 The primary judge found, and the appellant does not challenge, that there were on the premises on the relevant dates trailers with containers inside them, that pallets used to prop up the trailers were located on the premises and that the equipment for unloading the containers was permanently attached to the trailer and formed part of it. Essentially, the appellant’s case before the primary judge was that there was a breach of Condition 22 of the consent because firstly, the open areas within the premises were being used for the storage of more than three trailers and, secondly, the trailers the subject of the second charge were not connected to a prime mover and were, therefore, being stored upon the premises by virtue of that fact.

11 In this respect, the evidence established that each of the trailers referred to in the particulars of the second charge were not, at the relevant time, attached to a prime mover. Some of the offending trailers were empty and some had a container located within it.

12 The respondent adduced evidence, which was accepted by the primary judge and not challenged on the appeal, that although its business involved the use of three prime movers, it also involved more than three trailers. In this respect, the business involved transportation of containers to and from the container depot at Port Botany to the premises of the respondent’s customers. Once a container was collected from the depot, the trailer holding the container was delivered immediately to the customer. However, if immediate delivery was not possible, the driver of the prime mover would bring the trailer with its container to the premises where it would be parked temporarily until the customer was able to accept delivery of it.

13 In these circumstances, after parking the trailer (with its container) on the premises, the driver of the prime mover would return to the container depot with an empty trailer in order to collect another container for delivery.

14 The respondent’s evidence further established that a container which was unable to be delivered to the intended recipient within a couple of days of being collected at the Port Botany container depot would be transferred in its trailer directly to the respondent’s storage facilities at another location. However, if there were unexpected delays or traffic jams so that the trailer with its container was unable to be driven to those storage facilities, it would be parked upon the premises until the next morning and occasionally over the weekend after which it would be delivered to the customer.

15 The primary judge determined the matter upon the basis that none of the allegedly offending trailers were, on the relevant dates, being stored upon the premises. She therefore concluded that there was no breach of Condition 22. She accordingly found the respondent not guilty of the second charge and ordered that the appellant’s Notice of Motion be dismissed. It is against that order that the appellant appeals to this Court.

16 Three grounds of appeal were identified in the Notice of Appeal with Appointment but the third was not pressed at the hearing of the appeal. Further, in argument the appellant confined its case to the storage of more than three trailers (with or without containers). It did not challenge the primary judge’s findings with respect to the pallets referred to in [9] above.

The reasoning of the primary judge

17 Before her Honour the appellant submitted that the respondent had stored “goods or materials” upon the open areas of the premises in breach of the prohibition contained in Condition 22 which only permitted those areas to be used for

“storage … of company vehicles and cars mentioned in the application form.”

18 It was submitted that this only permitted the storage of three prime movers to which were attached three trailers so that the storage of trailers unattached to their prime movers, whether or not they accommodated a container, was a breach of the prohibition against the “storage of goods and materials of any other description”. In other words, a breach of the prohibition occurred as soon as the trailers were detached from the prime movers when they ceased to be in transit and were, therefore, stored upon the premises.

19 Having found that the unloading equipment was attached to a trailer so that it was not a separate item from the trailer but part of it, her Honour (at [23]) considered that it was only necessary for her to deal with the storing of trailers on the dates specified in the second charge (other than on 19 February 2004) and the storing of pallets on three of those dates.

20 Having noted that there was no dispute that the consent was limited to the storage of three prime movers, the issue was whether it also limited the number of trailers which could be stored upon the premises, the appellant having argued that any more than three trailers stored thereon at any time constituted a breach of Condition 22. Her Honour observed that the appellant’s case did not distinguish between the use of trailers at the premises in the day to day business operations of the respondent and their storage when detached from a prime mover.

21 After referring to Conditions 1, 4, 7, 14, 18, 20, 22 and 23 and to the contents of the application form (it being the appellant’s case that it was incorporated into the consent by Condition 22), the primary judge (at [25]) determined that, as a matter of construction, the consent was

“for three prime movers and an unspecified number of trailers to be used at the premises but with storage for only three trailers and three prime movers allowed at the premises.” (emphasis added)

22 Accordingly, the issue became whether more than three trailers were being stored at the premises on the dates referred to in the second charge. In this respect, her Honour agreed with the respondent’s submission that the “storage” of vehicles was different from the parking of vehicles for a temporary purpose. She said she was assisted in this construction by the terms of Conditions 4, 14, 20 and 23 which referred to the parking and/or standing of vehicles and/or trailers as distinct from the storage of vehicles and trailers.

23 The gravamen of the primary judge’s decision is to be found in [27] of her judgment in which she said:

“I agree with the Respondent’s counsel that ‘storage’ of vehicles does not commence the moment that a trailer is disconnected from the prime mover and is left in the Respondent’s yard. The meaning of ‘storage’ must be considered in its context rather than applying without moderation the dictionary meaning of ‘to hold’. Here there is clearly a difference between parking trailers, with our without containers on them, while waiting to further use them for collection or delivery in the course of a day, overnight or over a weekend, and placing them elsewhere for storage when not required in the daily operations of the business. Where trailers are used in the day to day operation of the Respondent’s business I do not think they can be considered as being in storage when they are left on the premises pending their further use the same or next working day. I consider trailers used in this way are parked for a relatively short period, not stored.”

24 Finally, her Honour (at [28]) accepted the respondent’s submission that the pallets were not stored but were used for the purpose of propping up the trailers. Accordingly, she held that the appellant had not established the second charge.

The appellant’s contentions

25 The appellant submitted that the conditions of consent threw light upon its proper construction. Conditions 4, 7, 8, 14, 20 and 24 were relied upon not only by the appellant but also by the respondent. It is convenient to set them out in full:

“4. Off-street parking space shall be provided for two (2) employees vehicles, and is to be paved, line-marked, signposted and drained in accordance with Council’s Off-Street Parking Code.
Off-Street parking space shall be provided for three (3) prime movers and three (3) trailers, and is to be paved, line-marked, signposted and drained in accordance with Council’s Off-Street Parking Code.
…
7. No materials, goods, machinery, containers or other article shall be stored, placed, stood or otherwise permitted to remain between the street alignment and the building or fixed building line.
8. Provision shall be made for all vehicles being loaded, unloaded or otherwise serviced, or waiting to be loaded, unloaded or otherwise serviced, to stand entirely within the premises.
…
14. No motor vehicles awaiting repair or under repair, or awaiting delivery, are to be stored, parked or otherwise permitted to stand in a public street. All such vehicles shall be accommodated within the premises.
…
20. The vehicles stated within the application as operating from the premises, are to be parked wholly within the subject land when not in use.
…
24. The applicant being informed that this approval shall be regarded as being otherwise, in accordance with the information and particulars set out and described in the Development Application registered in Council’s records as Development Application No. 78-A-86 of the Sixteenth day of June, 1978, and that any alteration, variation or extension to the use, for which approval has been given, would require further Town Planning Approval from Council.”

The appellant’s first contention (Ground 1)

26 In the context of these conditions, the appellant made two submissions. The first, as I understand it, was that any storage of trailers was to be confined to the building erected upon the premises so that it would be a breach of Condition 22 to store any trailers in the open areas of the site. The second was that the primary judge erred in construing the consent as being one for “three prime movers and an unspecified number of trailers to be used at the premises”. For the purpose of construing the consent, it was permissible to have regard to the information provided in the application form as the consent (and Conditions 22 and 24 in particular) expressly incorporated the application: Auburn Municipal Council v Szabo (1969) 67 LGRA 427 at 433.

27 The appellant drew attention to the fact that paragraph 5 of the application form described the proposed development in respect of which consent was sought as

“Storage and maintenance for our three prime movers and trailers in connection with our carrying business.”

Further, in answer to the question posed in paragraph 21 of the form as to the number and type of vehicles to be operated from the premises, the respondent answered “ (3) prime movers and trailers ”.

28 Accordingly, it was submitted that her Honour had erred in finding that the consent permitted storage and maintenance of three prime movers and an unspecified number of trailers. Such a construction was, so it was contended, inconsistent with Condition 4 of the consent which required off-street parking to be provided for “three (3) prime movers and three (3) trailers”.

29 Contrary to the appellant’s submission, the primary judge did not construe the consent as permitting the storage of an unspecified number of trailers upon the premises. Rather, she construed it (at [25]) as permitting the storage of only three trailers and three prime movers upon the premises. What she did find was that the consent permitted the use of the premises for three prime movers and an unspecified number of trailers. In other words, there was nothing in the consent that prevented more than three trailers being utilised upon the premises in connection with the respondent’s business. But that did not mean that more than three trailers could be stored upon the premises.

30 It was no doubt for this reason that her Honour considered that a trailer could be used or even stored upon the premises even though it was disconnected from a prime mover. In my opinion there is no justification for construing the consent in the narrow manner for which the appellant contends so that not more than three trailers can be operated from or used upon the premises at any one time. It is true that no more than three trailers may be stored upon the premises at any one time, but that is a different question and requires consideration of the distinction which her Honour found between the temporary parking of a trailer upon the premises and its storage thereon. It was this distinction that was the subject of the appellant’s second contention.

The appellant’s second contention (Ground 2)

31 The appellant submitted that the primary judge erred in holding that a trailer could not be considered to be stored upon the open areas within the premises in breach of Condition 22 when it was merely left on site pending further use on the same or the next working day. It was submitted that the word “storage” had the same meaning where used in the permissive part of Condition 22 as well as in its prohibitive part. Thus in its context, the word “storage” in the phrase “the storage of goods or materials of any other description” in the prohibitive part of Condition 22 referred to the holding or setting aside of goods which were not immediately required in some operation. It followed that the same meaning should be given to the word “storage” in the permissive part of the condition so that the parking of a trailer, whether with or without a container, which was not immediately required for the purpose of its attachment to a prime mover, would also constitute the storage of that trailer so that if at any one time more than three trailers were so “stored”, the condition was breached.

32 Accordingly, the appellant submitted that the overnight parking or the weekend parking of a trailer constituted its “storage” for the purposes of Condition 22.

33 In the respondent’s written submissions, a number of dictionary meanings of the word “storage” were referred to. It is unnecessary to record them all except to express the view that, in the context in which it is used in Condition 22, in my opinion the closest dictionary meanings of the word “storage” are the following:

Shorter Oxford English Dictionary – “ the action of laying up a thing or things in reserve ”
English Oxford Dictionary – “ the action of storing or laying up in reserve ”.

34 The Shorter Oxford English Dictionary defines the word “store” as, relevantly, to “keep in store for future use; collect and keeping in reserve; … accumulate”. The same dictionary defines the word “stored” as including “kept in reserve as a store or stock, accumulate”.

35 The foregoing definitions, if applied to Condition 22, would indicate that trailers were stored upon the premises where, being separated from a prime mover, they were being kept in reserve in the sense that they were not required for immediate use in the respondent’s day to day operations. In other words, the consent was concerned to limit both the number of prime movers and trailers which were to be left or parked within the open areas of the premises in circumstances where they were not currently required for the purpose of collecting, transporting and delivering containers on behalf of the respondent’s customers.

36 Accordingly, a trailer with a container which is returned from the container depot at Port Botany to the premises to be parked there temporarily until it can be delivered to the customer to whom it was destined because of the inability to deliver it directly from the depot to the customer’s premises, is to be considered, as it were, as still in transit between the container depot and the customer’s premises and thus in use for the immediate purpose of the respondent’s business in collecting and delivering containers on behalf of its customers.

37 In my opinion, any other construction would frustrate the clear purpose of the consent which was to permit three prime movers together with trailers to be operated from the premises for the purpose of the respondent’s carrying on transport business. In this context, it is well to remember, as Mason P, with whom Stein and Giles JJA agreed, observed in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at 507 [37]), that a development consent

“must speak according to its written terms, construed in context but having regard to its enduring function.”

38 To the same effect, the President further observed (at 508 [41]):

“The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it …”

39 Given the nature of the respondent’s business, I see no basis for construing the consent to limit the number of trailers able to be utilised in its operation to three although, as her Honour found, only three could be stored upon the premises at any one time.

40 I would therefore agree with her Honour’s observations in [27] of her judgment that the consent differentiates between on the one hand the temporary parking of trailers, with or without containers on them, while waiting to further use them for collection or delivery in the course of the day, overnight or over a weekend and, on the other, their storage when not required in the daily operations of the respondent’s business. Such a construction is supported by Conditions 4, 7, 8, 14 and 20 which draw a clear distinction between vehicles being parked upon or standing within the premises and vehicles being stored thereon.

41 In the circumstances in which the trailers the subject of the second charge were, on the evidence, being used at the time they were being observed by the council officers upon the premises, it was open to her Honour to find, as she did, that they were relevantly in use upon the premises and were not being stored thereon within the meaning of Condition 22. I would therefore reject the appellant’s second contention.

Conclusion

42 In my opinion, it follows from the foregoing that her Honour was correct in finding that the appellant had not established the second charge and in ordering that its Notice of Motion alleging the respondent’s contempt of Order 3 be dismissed.

43 I would therefore propose that the appeal be dismissed with costs.

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