Cairns City Council v Hawton Earthmoving Pty Ltd
[1999] QPEC 37
•3 September 1999
IN THE PLANNING AND ENVIRONMENT COURT
HELD AT CAIRNS
QUEENSLAND Application No.9 of 1998
SEPTEMBER, 1999
[Cairns City Council v Hawton Earthmoving Pty Ltd & Anor]
BETWEEN: CAIRNS CITY COUNCIL
Applicant
AND: HAWTON EARTHMOVING PTY LTD
First Respondent
AND: STEVEN ANDREW HAWTIN
Second Respondent
REASONS FOR JUDGMENT
This is an application by the Cairns City Council for declarations and an injunction against the respondents based on an allegation that certain uses to which land owned by the second respondent is being put are unlawful according to the provisions of its current Town Planning Scheme.
The second respondent’s land is situated at 154 Hardy Road, Edmonton and is more particularly described as Lot 1 on RP 817970 Parish of Grafton County of Nares. It consists of approximately 3,870m². I accept the evidence of the second respondent concerning the history of his ownership of the land and the use to which it has been put as set out in his affidavit filed 19th April, 1999. There appears to have been some confusion about his occupation of the land arising out of a name change to the road which the land fronts. Such confusion was dispelled by the first respondent’s oral evidence and otherwise there does not appear to be any serious dispute as to the matters set out by him in his aforementioned affidavit. Until the 1990’s the surrounding land was used for growing sugar cane. In the early 1980’s with the consent of the original owner the second respondent stored trucks and machinery on the site. In about 1985 he purchased the subject land. At that time there was a dwelling house situated upon it. The allotment was somewhat larger at that time. However, since the second respondent purchased the land, 181m² of it was resumed by the then Mulgrave Shire Council for the purposes of widening Hardy Road. The dwelling house was situated on the resumed land and it was ultimately removed in December, 1997 as a result of the resumption. Shortly after the second respondent acquired the land, he obtained approval from the local authority and constructed a shed covering 360m² on the site. Since acquiring the land the second respondent has resided on the subject land, firstly in the existing dwelling, and since its removal in an accommodation unit located within the shed.
The first respondent is a very small private company. It has issued capital of $2.00. It is not completely clear but it appears that the second respondent is its sole beneficial shareholder. I accept the possibility that the first respondent’s father may own 1 share in the company but this does not alter my overall view about the matter. The second respondent is sole director and secretary of the first respondent. The first respondent carries on business as an earthmoving contractor. It has used equipment and vehicles either owned by itself or the second respondent to carry out earthmoving operations. None of the earthmoving operations are carried on upon the subject land. The second respondent is the first respondent’s only employee. At the present time the vehicles and equipment used in the earthmoving business are owned by the second respondent. It seems that the arrangement is that he hires that equipment to the first respondent for use in the earthmoving business. He is the only employee engaged in the earthmoving business. It seems tolerably clear that the involvement of the first respondent is solely for the purposes of taxation and/or financial planning. The reality of the situation is that the second respondent is the beneficial owner of the earthmoving business, he is the only person engaged in working in the earthmoving business and he, at the present time at least, owns the equipment used in the earthmoving business.
The first respondent used the original dwelling and the present temporary dwelling for the storage of business records. He occasionally carries out a minimum of paperwork on the premises. He uses the phone at the premises occasionally for the purposes of the earthmoving business. He also has a hobby of building and restoring motor cycles. I accept that he uses a substantial part of the shed area for this purpose. He has some tools and fairly small items of equipment for use in this pastime. So far as the vehicles and equipment used in the earthmoving business are concerned, the primary vehicle is and has been a prime mover and semi-trailer. The equipment consists of a roller and track loader which are carried in the semi-trailer. The second respondent uses part of the shed to park the prime mover and semi-trailer with the equipment on the trailer usually overnight and at weekends. There is a very small area also used to keep some spare wheels and a small quantity of spare parts. He carries out very minor and infrequent maintenance and servicing of the vehicles on the subject land. I am satisfied that this use and the activities which I have described above commenced in about 1985 and have continued uninterrupted to today’s date.
The difficulty which the respondents now face arises out of certain provisions in the applicant’s Town Planning Scheme. Under the current scheme which came into force on 29th November, 1996 the subject land is contained within the Residential 1 zone. Under the current planning scheme there are specific definitions provided for uses described as (a) heavy vehicle parking and (b) transport and equipment depot. It is not disputed by the respondents that the use to which the subject land has been put for the purposes of parking the semi-trailer and equipment comes within at least one of those definitions. Both of those uses are prohibited in the Residential 1 zone. An earlier town planning scheme came into force on 17th December, 1993. Under the scheme the subject land was included in the Residential zone. Pursuant to that scheme the particular use of “heavy vehicle parking” was defined. There is no serious dispute that the use to which the land has been put over the years as I have set out above comes within that definition. “Heavy vehicle parking” was a prohibited use in the Residential zone under the 1993 planning scheme. In summary therefore the parking of the semi-trailer and prime mover carrying the earthmoving equipment on the subject land has been a prohibited use under the various planning schemes of the applicant since 1993. It is this use against which the applicant seeks an injunction. It is not disputed that if the use was a pre-existing lawful use prior to the introduction of the 1993 planning scheme and provided it has been carried on continuously without material change, it is protected.
As I have already indicated, I am satisfied that the use has continued without material change since well before 1993, the sole question for consideration is whether or not it was being lawfully carried on prior to that time. The planning scheme which applied before 1993 was introduced in 1975. Prior to the 1993 scheme the subject land was in the Rural C zone. Under that scheme a “Domestic Industry” was a use to which land in the Rural C zone could be put “as of right”. The primary submission from the respondents is that the use under consideration was a “Domestic Industry” within the meaning of that term in the 1975 scheme. It seems to be accepted that if that were so, in light of my findings of fact, the current use is protected as a lawful pre-existing use. Under the 1975 scheme Domestic Industry was defined as follows:-
“An occupation or profession carried on in or under a dwelling house or within the curtilage of a dwelling house by a person resident therein and in the conduct of which –
(a)no source of power other than one or more single phase electric motors having a total connected load of not more than one half kilowatt is used;
(b)the floor area used (whether temporarily or permanently) does not exceed more than one third of the total floor area of the dwelling house, except with and in accordance with the conditions of an express permission of the council;
(c)no load is imposed on any public utility greater than that which is normally required by either uses permitted in the zone or in which the dwelling house is situated;
(d)no sign other than a sign not exceeding 0.5m² in area and bearing only the name of the occupier and of the occupation is displayed;
(e)no person is employed other than the person carrying on the business and members of his family who are also resident in that dwelling house;
The term does not include any occupation or profession which causes injury to or has a prejudicial effect on the amenity of the locality in which it is carried on due to the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste products or thing whatsoever.”
So far as is relevant “dwelling house” is defined as follows:-
“any land, building or other structure which comprises or is intended to comprise only self-contained accommodation for the exclusive use of one family including such outbuildings as are incidental to and necessarily associated with the dwelling house.”
The applicant has the burden of proof in relation to this matter. There is no evidence to suggest that the use is disqualified as a Domestic Industry by reason of the exclusions contained in sub-paragraphs (a), (b), (c), (d) and (e). There is also no evidence to suggest that the use carried on by the respondents is excluded from the definition of Domestic Industry by reason of any of the matters referred to in the concluding paragraph of the definition. The thrust of the submission made on behalf of the applicant is that the use under consideration cannot qualify as a Domestic Industry because of the involvement of the first respondent. As I understand submissions made on behalf of the applicant the proposition is that the “occupation or profession” referred to in the definition must be carried on by a self employed person resident in the dwelling house. I cannot accept that this is so. Firstly, in my view, the Town Planning Scheme is primarily concerned with the regulation of physical activities. It is obvious that the definition of Domestic Industry requires that the physical activities being carried on in the pursuit of the occupation or profession must be carried on by a person resident in the dwelling house, but in my view it is not concerned with whether the person does so as a self-employed person or as an employee. In my view the proposition advanced by the applicant is not supported by the words of the definition. In fact sub-paragraph (e) in my view, suggests the contrary. It commences “no person is employed other than etc..”. If one were to take the applicant’s argument that the definition distinguishes between employees and self-employed persons it might well be argued that only employees may carry on a Domestic Industry and a self-employed person may not. I of course reject that proposition as well.
I find that the occupation of the second respondent is truck driver and plant operator. It is part of that occupation to attend to shedding, security and minor maintenance of the truck and plant which he drives and operates. I am satisfied that the carrying on of such occupation is not precluded by any of the matters contained in sub-paragraphs (a) to (e). There is no evidence that the manner in which the second respondent is carrying on his occupation on the subject land causes any injury to or has any prejudicial effect on the amenity of the locality in any way whatsoever. Rather, the evidence points inevitably to a finding to the contrary.
I am therefore satisfied that prior to the gazettal of the 1993 Planning Scheme the second respondent was conducting a Domestic Industry on the subject land which was a lawful use of such land. I am satisfied that he has continued to carry on that same use without interruption. I am therefore satisfied that his use is a protected, lawful, non-conforming use.
IN THE PLANNING & ENVIRONMENT COURT HELD AT
PLANNING & ENVIRONMENT JURISDICTION
BEFORE HIS HONOUR JUDGE WHITE Application No. 9 of 1998
BETWEEN: CAIRNS CITY COUNCIL
Applicant
AND: HAWTIN EARTHMOVING PTY LTD
First Respondent
AND: STEVEN HAWTIN
Second Respondent
Dates of hearing: 28 April, 1999
Judgment: 3 September, 1999
Solicitors: MacDonnells for Applicant
Counsel: Mr. Haydon
Morrow & Associates for First and second Respondent
Counsel: Mr. D. Morzone
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